Steve Palmer [00:00:00]:

Alright. Here we are. Lawyertalkpodcast.com. For those of you who haven't checked it out, you should. It's at lawyertalkpodcast.com and on all the socials. Little special episode today. We've got a guest, Paul Scarcella.

Paul Scarcello [00:00:11]:

How's everybody doing today? We're doing great.

Steve Palmer [00:00:14]:

Yeah. Now we got Troy who's our normal. They don't teach you that in law school guy who also helps with the podcast regularly. And, Troy, you've been bringing to us a case that we've been want that you've been wanting to follow and look at. It's a popular case down in Florida, the The state of Ohio versus Mario Fernandez Saldana. There's a codefendant too.

Troy Hendrickson [00:00:31]:

Yeah. The codefendant is it's, let's I wanna give Fernandez, and then there's also a hitman. I think it was Torn. Right?

Steve Palmer [00:00:39]:

No. The hitman is named Henry Arthur Tennant. And then there's a codefendant woman named

Troy Hendrickson [00:00:46]:

Fernanda. Yeah. Fernandez. Right? Gardner. Gardner.

Steve Palmer [00:00:49]:

Gardner. Alright. So first of all, get the facts straight, man.

Troy Hendrickson [00:00:52]:

I know. Jesus. Facts straight.

Steve Palmer [00:00:54]:

Jesus. So miss Gardner and Gardner's first name was? Shaina? Shaina.

Troy Hendrickson [00:01:01]:

Alright. Maybe we should restart this.

Steve Palmer [00:01:02]:

We're gonna restart this.

Paul Scarcello [00:01:04]:

Shaina Gardner.

Troy Hendrickson [00:01:05]:

Shaina Garner. Shaina Garner. Shaina Garner. Shaina Garner. Alright. I can do that.

Steve Palmer [00:01:11]:

Alright. Here we are. Lawyer Talk podcast off the record on the air. We are back. We're doing a special segment, a special episode. But before we get to that, you can check us out at lawyertalkpodcast.com or on all the socials, YouTube by the same name. Facebook, by the same name. You get the story.

Steve Palmer [00:01:28]:

We do lots of stuff for those who follow the q and a series. That's question and answer. We do a series with, two law students. One here is Troy with me. And then we do a DUI three sixty and some breakdown stuff. This is more of a breakdown thing. It's sort of a cool case, Troy. You've been following it.

Steve Palmer [00:01:43]:

And, Troy asked me a question earlier today. We weren't recording. We weren't planning on recording. We were upstairs working where we have a real job with real law stuff going on, in the area of criminal defense. And Troy comes to me with a question about this case in Florida, and the k there's a couple co defendants. The first one is well, the the caption is State of Ohio versus State of Florida. State of Florida. That's right.

Steve Palmer [00:02:05]:

State of Florida versus Mario Fernandez Saldanha. And by the way, Paul Scarcello with us. He's a lawyer in my office, or he shares office space with us and has a we'll get to your bio here in a second, but he's got some unique insight. I think it's I think it's gonna be interesting. And then Mario Fernandez Saldano is the boyfriend to Shannon Gardner. Shane Shana?

Troy Hendrickson [00:02:27]:

Shana Gardner. Yeah.

Steve Palmer [00:02:28]:

Shana Gardner. And then we have another man who becomes very relevant here, and his name is Tennen, mister Tennen. So here's here's basically what's going on. Actually, before we go there, Paul, introduce yourself, man.

Paul Scarcello [00:02:40]:

Hi. Paul Scarcella, was a prosecutor for twenty years before doing defense work, rent space from you upstairs. I was trying to work on a couple of things, and you asked if I wanted to come down and talk about this case, and it sounded like one that I had done. So I'm happy to be here.

Steve Palmer [00:02:52]:

Yeah. We hijacked Paul, and there's a reason for that. So Paul was a an assistant Ohio attorney general.

Paul Scarcello [00:03:00]:

Yeah. I spent ten years with the AG's office doing murder cases all around the state of Ohio.

Steve Palmer [00:03:04]:

So you basically were the guy that came in you were the hatchet guy. When there

Paul Scarcello [00:03:09]:

was a difficult case in a smaller county or some other larger county, that and they needed a little help, yeah, it was my job to go in and try the murder case.

Steve Palmer [00:03:17]:

Yeah. So if Paul started his life as a prosecutor, I didn't I started my life as a criminal defense, but you're a defense lawyer now. I am. Yes. But in fact, we met working on cases together. We kind of

Paul Scarcello [00:03:27]:

we I like to say we grew up together. I was a young prosecutor, you were a young defense attorney, and we kind of grew up in Franklin County together.

Steve Palmer [00:03:33]:

Right. So we had mutual respect, and here we are at the round table. Anyway, Troy, you you want me you better cover the facts. So Troy's a law student. One of the things they do to you in law school is they make you stand up and say, what are the facts?

Troy Hendrickson [00:03:45]:

Yes. And I wish we had Becky here. She's more the expert on here. So my understanding of what's been going on is this is the ex wife of Shannon's the ex wife of the victim, and

Paul Scarcello [00:03:56]:

she wanted

Troy Hendrickson [00:03:57]:

to have this magical love story with her new boyfriend who is, then hires a hitman to then kill her ex husband.

Steve Palmer [00:04:07]:

Alright. So at the risk of not embarrassing Troy here, I'm just gonna state the facts.

Paul Scarcello [00:04:10]:

Okay. Cool.

Steve Palmer [00:04:11]:

So we got a woman Mhmm. Who's married to a dead guy now. Now dead guy, her husband. Mhmm. And woman finds a boyfriend, and they fall in love. And they have this magical relationship, and they decide all we need in the world is for my husband. She decides that is for my husband to be dead. Then we can go pursue this love affair and get married and live happily ever after.

Steve Palmer [00:04:30]:

That's basically it? Yes. That's that's it. So enter mister Tennon, Henry Arthur Tennon, who allegedly is a hitman. And I guess there are places in the world where you can hire hitmen, Florida being one of them.

Troy Hendrickson [00:04:42]:

Mhmm. Great Margaret Ford there.

Steve Palmer [00:04:44]:

I I apparently said. So they you know, most of these story Paul, I mean, you've had we'll get we'll get to your experience. But most of the time you hear these stories on TV or otherwise, it's all nonsense. The hitman is usually a cop. That is correct. And so the yeah. Oh, yeah. These the I would say 99 out of a hundred times somebody tries I or hitman, they end up with a cop or a snitch.

Troy Hendrickson [00:05:05]:

Oh, well, do the cops actually do the killing? Or No.

Paul Scarcello [00:05:08]:

They get arrested for

Steve Palmer [00:05:09]:

Chris Spears

Paul Scarcello [00:05:10]:

and commit murder. So the boyfriend or husband ends up living nine times out of 10.

Steve Palmer [00:05:14]:

Oh. Yeah. So usually, these plots are foiled before they ever get any legs. But not this one. Apparently, mister Tennant successfully guns down the husband.

Troy Hendrickson [00:05:22]:

Good Yelp review. That's what I found him. Yeah.

Steve Palmer [00:05:24]:

That's right. So he gun down the husband. Now what's interesting about this is Tennant, goes into court, cuts a deal with the prosecutor. This is where Paul's gonna come in in a second, and admits to doing this, admits that boyfriend and wife hired him to do this, and, pleads guilty to it. And gets he got fifteen years? Fifteen to life. Fifteen to life, which would be a a decent sentence for such conduct. Right? I mean, you might even expect life without parole.

Paul Scarcello [00:05:52]:

Yeah. So having had a couple of these through the years, I did have a case in Southeastern Ohio where a husband wanted to kill his wife, so he hired a couple different dopers from the county, and somebody did, in fact, go in and strangle her. What's funny is he had divorced her twice before, didn't wanna divorce her a third time, so he just decided to have her killed.

Steve Palmer [00:06:10]:

That's how miserable divorce court is for me.

Paul Scarcello [00:06:13]:

He was in his seventies. She was in his seventies, and the the actual person who strangled the woman got the best deal out of all of them. So that's generally sometimes how

Steve Palmer [00:06:23]:

it works. So how does the guy do like, I already know this, but we're gonna let you explain. Like, how does the guy who does the actual strangling get the best deal?

Paul Scarcello [00:06:30]:

Because what we end up wanting as a prosecutor is the people who actually caused this. Right? So in this case, down in Jackson County, the guy who did the strangling had some drug addiction issues and a few things like that. We knew he did it. He is doing life in prison, but he plead to murder rather than aggravated murder, so he's eligible for parole at an earlier time. Yeah. But what we wanted was the husband. He's the reason, that all of this started. You know? The guy who did the strangling wasn't gonna kill this woman, but for the money that was offered by the husband.

Paul Scarcello [00:07:01]:

So in order to get to him, we kinda needed that testimony. So we're

Steve Palmer [00:07:06]:

He cuts a deal. We cut

Paul Scarcello [00:07:07]:

a deal. 15 a life rather than life without parole, much like probably happened in this case.

Steve Palmer [00:07:12]:

Yeah. So just like this case, Tennen probably is caught because you don't really gun down somebody in public. I I don't know the facts of the actual murder, but most people get caught. And he cuts a deal, and and he's gonna provide testimony against the other two, sort of the how this thing shakes out. And by the way, murder, having defended them and Paul, you prosecuting them And defended them. And defending them. Lots of them, actually, probably more than I, by far. You have in Ohio, it would be the minimum would be 15 to life.

Steve Palmer [00:07:43]:

If you used a gun and they wanted to throw that on, it would be 18 to life. And then it goes up from there. You've got twenty, twenty five, 30, and then life without parole. Right. So they're different degrees. So this guy cut a deal that's actually a pretty decent deal for a I mean, I guess his killings go. We should probably talk about that because not all murders are

Paul Scarcello [00:08:02]:

Not all murders are the same. So the first thing you have to understand is what is actually going on behind the scenes. Why why was the murder be committed? So in Ohio, and I think Florida's pretty similar. There's an aggravated murder statute, which is prior calculation and design or premeditation is what everybody thinks about it. That's what everybody kinda thinks of as first degree murder. There's some planning that goes into it. So that's what a murder for hire is gonna get you. It's gonna be an aggravated murder charge because there's the prior calculation and design.

Paul Scarcello [00:08:29]:

There's all that planning that goes into it. We punish that more severely than just say a one punch fight outside of a bar where the guy ends up falling and and banging his head and ends up dying from the injuries. That's just a straight murder. It's a purposeful killing. And then there's a couple different ways that you can get around that too. But for the most part, a murder without any prior calculation and design is 15 to life, no gun. That's the sentence. The aggravated murder in Ohio, and I believe Florida, like I said, is is very, very similar.

Paul Scarcello [00:08:57]:

You get twenty, twenty five, thirty your life without parole. And, theoretically, in Ohio, we still do have a death penalty, but it's just never used anymore. So it still hangs out there.

Steve Palmer [00:09:06]:

Does does Florida Florida's got death penalty?

Paul Scarcello [00:09:08]:

Florida does have the death penalty, and I think they still have the express lane to use it.

Steve Palmer [00:09:11]:

Yeah. So they have, this could have been a death case. This is the kind of case that would get death. And it very well may be a death case for the or the wife and the boyfriend.

Paul Scarcello [00:09:20]:

They very well may be facing a death penalty based upon the prior calculation and the Yeah. Meditation. So basically

Steve Palmer [00:09:25]:

the idea I mean, like, do you remember your definition of murder? Yes.

Paul Scarcello [00:09:29]:

No. No.

Steve Palmer [00:09:29]:

I don't know. To you. Taking one human life, by another without mitigation, justification, or excuse. That's sort of the common law definition. And then there were things in common law. By common law, I mean, going back to, like, medieval times with Henry the second and even before that. You would have, things that made it worse. One would be, careful planning or lying in wait.

Steve Palmer [00:09:50]:

So, like, the insurance guy killing, like, hiding in the bushes and jumping out and killing somebody. That that that evidences somebody's intent to really, really, really do it on purpose as opposed to, we just get in a fight or I come home and you're in bed with my wife. That's sort of a hot blood type killing. Those are

Troy Hendrickson [00:10:09]:

treated differently. So as Paul said, the circumstances behind it matter. It's kinda crazy for god's name because he's Luigi and this is Mario. It's like it's like perfect

Steve Palmer [00:10:21]:

Alright. That that is, yeah. Exactly. So we have Luigi and Mario and both were committed similar or at least severe murder crimes. With a

Paul Scarcello [00:10:29]:

charge of homicides. Yeah.

Troy Hendrickson [00:10:30]:

Kinda crazy coincidence here.

Steve Palmer [00:10:32]:

Alright. So here's where things get and I understand this case is in a hearing right now on these issues, but here's where things get sort of interesting. Mister Tennant, last year sometime, goes in and pleads guilty and cuts his deal with the prosecutors. And I'm sure the prosecutor said, look, we're only gonna put you in jail for fifteen to life, meaning you might get a chance to get out of prison at some point. Then, for reasons that we don't really know, and I don't think the general public knows yet, there's a hearing on January 13. And on January 13, the judge calls the case. Mister Tennant is there. The prosecutor is there for the state of Ohio, and mister Tennant's lawyer there, Chitterfield or Chishfield, whatever his name was.

Steve Palmer [00:11:11]:

We better get it right. See, we actually have the transcript. Chipperfield is Tennant's lawyer. So the dialogue reads something like this, before the court and this is sort of important to know. When we go to court for somebody and you're my client, the judge is going to address me as your lawyer first. We're not gonna get this situation where unless it's unless it's predetermined for some reason, that might be a good one, that they're actually gonna talk to the client or a judge will actually talk to the client or the defendant directly. Typically, it'd be like, mister Scarcello, on behalf of your client, what say you? Well, that's what the judge tries to do. And, what happens is mister Tennant jumps in and says, I just want to bring your attention that my testimony.

Steve Palmer [00:12:03]:

The court says, no no no no no no no, mister Tennant. Talk to your lawyer. No no no no no no no no. No. I want just want to bring to your attention false testimony. So the dialogue reads look look something like this. The court, talk to mister Chipperfield first. Tell him what you want to tell me.

Steve Palmer [00:12:19]:

Okay? Mister Tennant doesn't talk to his lawyer. Instead, he just blurts out, I want to bring to your attention that my testimony the court cuts him off and says, no, no, no. Mister Tennant then finishes false testimony. So there's something when you when we get these transcript, there's it didn't catch it all. And if you were there, there's probably more of this that you would have been able to, discern. The court then says, hold on, mister Tennant. And then Chipperfield jumps in. Mister Tennant, we need to talk about that.

Steve Palmer [00:12:49]:

Mister Tennant, of course, says he needs another lawyer. They then take a break. They never get back on the record, and they pass on it. Meaning, in their terms, they continue or postpone the case, which is now set sometime in April. So what we have is this weird hearing where it seems like Tennant is about to say that I was gonna I gave false testimony. Now, Paul, if you're the what's great about this, you got experience on both sides. So you're the defense lawyer. What's the first thing you do?

Paul Scarcello [00:13:18]:

As a defense lawyer, the first thing I'm gonna do is scurry my client out of the courtroom and out of the record so that he and I can have a conversation about what's really going on and whether or not there's a reason to go back and try and renegotiate the deal. Because one of the concerns as a defense counsel for mister Tennant would be, if he goes backward on that deal because plea bargaining is based on contract law, the state can revoke that plea bargain. So instead of the 15 to life that he's doing, he could now be back to looking at life without parole, death penalty, or whatever he was initially charged with. So the first thing I would wanna do as a defense attorney would be to find out what's going on. Why does he want to revoke his deal? What has happened in the last year since I've seen him? Preferably, as a defense attorney, I would have had this conversation before we walked into court and been able to address it long before it kinda blew up like this. And it sort of seems like that

Steve Palmer [00:14:11]:

might have happened here because you see this, mister Tennant, we need to talk about that. That sort of implies there's been some discussion.

Paul Scarcello [00:14:19]:

I had but and you know as well as I do, Steve, that if you're in a back in a holding cell, which is how these things kinda happen, you have your conversations with the clients if they're in jail, you go see them, you talk to them, and then the day of the hearing, they're in a holding cell off to the side of the courtroom. You go back and talk to him. If he's wound up, if he's agitated, you're gonna do what you can do to make sure that you don't end up on the record and have that situation happen. Because the last thing you wanna do is put your client in more jeopardy. It's not that we wanna hide him or do anything like that. We just don't want him jacking himself up because he's wound up on something.

Steve Palmer [00:14:48]:

Which in this which makes this more interesting, I guess, because there is not a world where I would have gone to the judge. If I know this is gonna happen, I'd go to the judge and say, look, I'm not let I I'm out. Like, I I'm not involved in this mess, or I've I've given my advice. Something happened here because in order to get a guy out on the record in front of a judge, usually, the lawyer has to be involved in that on some level, or the client is just saying or the defendant is just saying, I don't give a f what you're saying. I got something to say. Right. So you bring them out, and then this sort of blows up. So who knows exactly how they got out there? But I think it's you know, in the the point of what we're doing here is that you and I, and hopefully you one day soon, Joy, Paul and I deal with this every day, like, the real world dynamics of this situation.

Steve Palmer [00:15:35]:

And I understand there's a lot of people following this case. They don't get that, that this doesn't happen in a vacuum. Tenant is sitting in a jail cell jail cell somewhere, maybe prison, maybe local jail if he still has to testify. And they got to get him back to the court holding cell where there can be an actual hearing. And presumably it's in person. It doesn't appear to be by Zoom. So he's there. Something happened to get him there.

Steve Palmer [00:15:58]:

And this in like like, Paul, if I'm the defense lawyer, I'm all over this crap because we this has a the real world risk of blowing up the deal. Meaning, you and I say, Paul's a prosecutor. I'm representing you, Troy. Paul and I cut a deal. And the deal is Troy gets, it's a drug case, say, and you're gonna snitch against your supplier. And as a result of your snitching, you don't have to go or you have to go to prison, but only for one year. Everybody else is getting 10 because it's a kilo of cocaine.

Troy Hendrickson [00:16:29]:

And I get stitches too.

Steve Palmer [00:16:31]:

Stitches. Right. Let's do them. So

Paul Scarcello [00:16:33]:

You're gonna get nice yellow pants at the jail instead of the orange ones.

Steve Palmer [00:16:36]:

Right. Exactly. Cool. So then but part of your deal is you have to cooperate and come back and testify against Rico, the your supplier. Now in the meantime, you have a change of heart, maybe because you have too many stitches while you're sitting in jail or prison because you already cut your deal. And when it's time for you to come back and testify, you have a sudden change of memory and or interest in providing testimony. Paul's the prosecutor. I'm your defense lawyer.

Steve Palmer [00:17:05]:

What we have what we have negotiated is basically a contract, not unlike a contract to buy a car. You do this for me, I'll do that for you, and then you on behalf or I'm at negotiate on your behalf, my client gets a deal. Now you don't follow through on your end. Paul, what happens?

Paul Scarcello [00:17:22]:

You revoke the deal. It's probably it's pretty simple.

Steve Palmer [00:17:26]:

You had this come up in a case? I've had it come up

Paul Scarcello [00:17:28]:

a couple of times. One of the cases I did with the Ohio attorney general's office was the Ohio Craigslist killings, where there were two guys who had a ad up on Craigslist and would bring the people into Ohio and then kill them and steal all of

Steve Palmer [00:17:39]:

their stuff. So the people following this Florida case might also be the folks who'd be interested. That's a fascinating case.

Paul Scarcello [00:17:44]:

It's a it's a very entertaining case. Brogan Rafferty was a juvenile associated with a guy by the name of Richard Beasley. They were in Akron. Beasley was wanted in Texas, murdered a man, stole his identity, and and then they murdered three other individuals. Rafferty was arrested as a juvenile. He was only 17 when these incidents happened and cut a deal, where he was gonna plead guilty to one kind of murder and was gonna be sentenced to fifteen to life. Shortly thereafter, he decided he did not wanna testify and was not gonna agree to the terms and conditions of the plea agreement that that had been made prior to our involvement. So we ended up trying him and convicting him, and he was sentenced to life in prison without the possibility of parole.

Paul Scarcello [00:18:25]:

The legislature changed that, and he's gonna be eligible for parole here in about fifteen years. But Is there did you

Steve Palmer [00:18:31]:

guys get any whiff of why he decided he was gonna change his mind?

Paul Scarcello [00:18:35]:

He never really I we have our theories, but he never really said why. We think that he just decided that he wasn't gonna cooperate. And if he was gonna go to prison, he was gonna go in as someone who wasn't cooperating. And it it's kinda worked out because last time I checked, he had worked his way up pretty high in the Aryan Brotherhood. So Oh, good. Probably good that he wasn't a snitch. Gotcha. It worked out good for him.

Steve Palmer [00:18:56]:

Right. So the the the the point is this happens and you breach Troy breached his bargain. You didn't pay for the car. No. Or they or you're flipping it the other way. They didn't you didn't deliver the car that you agreed to deliver, and, you lost your deal. So all bets are off. You come back.

Steve Palmer [00:19:14]:

And this happens. I mean, I I I've had this and I've had also had it happen the other way where the prosecutor changes his mind, where I have a victims had a change of mind. I can't offer that deal anymore. And that turned into a big hoopla about whether that was a breach of the of a contract that I could get

Troy Hendrickson [00:19:36]:

the judge to enforce. That's protected under like, is that Marcy's law? Is that right?

Steve Palmer [00:19:40]:

This is this predates that. Yeah. But but, it it's still what what Troy is talking about are these are is a constitutional amendment that provides rights to alleged victims of crime. In Ohio. In Ohio. And most states have something similar or at least a statutory law. So anyway, we we digress. Now if you're the defense lawyer not for mister Tennant, but rather for mister Fernandez Saldana, now what?

Troy Hendrickson [00:20:08]:

I'd be kicking and screaming if this is all I had. I I I just wanna know more. I just wanna understand why I

Steve Palmer [00:20:14]:

haven't got more information. That's about it. So what's going on today, literally today, is there's a hearing on the defense attorney's motion on Saldana's motion for to compel discovery. And again, that's just sort of a fancy lawyer way of saying this. The prosecutor in the case submitted or gave the defense a copy of this transcript, and nothing else. And, you know, the for as a background, I guess, as as a matter of background, prosecutors have to give the defense this kind of stuff. It's not only a statement of a codefendant, but it's also helpful. It's it's it's called exculpatory, it means it helps the defense.

Steve Palmer [00:20:55]:

But all they get is this, like, a false testimony statement. So Paul, if you're representing this guy, now what?

Paul Scarcello [00:21:01]:

Well, the first thing I'm gonna do is try and send somebody in to see him, but he's represented. So I can't send an investigator and to talk to him because he's represented.

Steve Palmer [00:21:09]:

He's got an attorney. So we can't we can't talk to other clients. Yeah.

Paul Scarcello [00:21:12]:

So I can reach out to his attorney, and his attorney may tell me, have a nice day, and I'm not gonna let him talk to you. So now I'm stuck. But somebody has to know. Specifically, more likely than not, the prosecutor's gonna wanna know or has to know what this guy's talking about. There's just no way. This doesn't just blow up. There was a letter sent from the prison. There was jail calls.

Paul Scarcello [00:21:33]:

There's something going on that the prosecutor has to be aware of if they're doing their job properly.

Steve Palmer [00:21:38]:

Yeah. This is back to my when I was sort of surmising, there had to been some backstory that got this guy into the courthouse.

Paul Scarcello [00:21:42]:

Exactly. So there's something that brings him back unless they were getting ready for trial, and they had him back. But the judge wouldn't have brought him into the courtroom if he was just there to testify. So there was something that was going on, whether it was a motion to to terminate his counsel, motion to revoke the plea. Something brought him back to the county to have him on the record for this false testimony stuff to even come up. So the prosecutor has to be aware of some little hiccup in his or her case. I mean, there's just if the if your whole case relies on this guy's testimony as the hit man, you're gonna keep a real close eye on him and you're gonna keep a real close contact with him. Whether he stays at a local jail or or jail similarly situated so that you don't have to go too far, or if he's in prison, you're gonna be visiting with him.

Paul Scarcello [00:22:24]:

You're gonna make sure your investigators are keeping an eye on him to make sure that he's still on the same team, if that makes sense. So the fact that all of this blew up, my gut tells me the prosecutors were aware of something brewing. So then what? So now now if they're aware that this guy is saying that he didn't get paid, this, that, or the other, all of that becomes exculpatory, and you have to turn that over to the defense. Yeah. Turning over a four page transcript of him going false testimony, while nice, you know that there's more to the story than just that.

Steve Palmer [00:22:56]:

Yeah. And so what happens is the defense does just that. They file a motion requesting specific discovery. In Ohio, we call that a motion to compel, or you would say a motion for Brady material, Brady being Brady versus Maryland, which is the seminal US Supreme Court case that says the prosecutor has to give us the stuff that's helpful to the defense. And they they the defense outlines everything we just talked about. And they demand any communication, any additional information, whatever the prosecutor may have about mister Tennant's, change of heart. And there's a hearing on it right now as we speak. Yeah.

Steve Palmer [00:23:32]:

So

Troy Hendrickson [00:23:33]:

I'll give it I'll give it a watch tomorrow.

Steve Palmer [00:23:34]:

You'll give it a try. I'll give it a watch less now. But it's but I think it's important. So people watch this kind of stuff, and they don't know the backstory of how it all fits together. There's just a there's just sort of the sensationalized hearing going on in court. I wouldn't say this is a normal situation, but it's not necessarily abnormal. What may be abnormal is that the defense doesn't already have whatever they're asking for. The, in my humble opinion, if the prosecutor has anything, even if it's their own notes, even if it's their own observations, even if it's a phone call they had with this guy's lawyer or the accused or the, or tenant himself, I believe the prosecutor has a duty even if it's just a conversation with the defense to say, hey.

Steve Palmer [00:24:16]:

Look. Here's what's going on. Here's the backstory. There's a guy that has previously basically skewered your client and put put the murder on your client. He's now changing his mind. I mean, if that's not exculpatory, I don't know what is. But I

Paul Scarcello [00:24:32]:

think if you for the people watching this podcast and who pay attention to these kinds of cases, just do a quick search for cases dismissed for discovery violations or, you know, for the state not turning over evidence or the police not turning over evidence. I mean Yep. There's a couple, like, right off the top of my head. I I'm getting older, so the names kind of escape me. But there were within the last year, I can think of three or four, like, real high profile cases, both political cases, non political cases, all around the country where cases were dismissed because the prosecution of the police. I mean, Alec Baldwin, I think, had his case dismissed Yeah. Because the police did not turn over evidence. So Yep.

Paul Scarcello [00:25:13]:

While I think this was rare when you and I started doing this twenty some years ago, I don't think it's as rare as it used to be. I think the way that the criminal justice system has changed, the way that politics have entered into it on both sides of the aisle, I'm not picking one side or the other, but on both sides of the aisle has made it much more about winning than it is about what it was supposed to to be about, I think, when you and I started. So I think if you look at this, this probably isn't as rare or as, uncommon as as people might think. I think it is becoming more and more common on a regular basis. You and I talk about this regularly, whether it's body cam that we're not being given because there's so much of it, prosecutors who aren't properly trained, who don't know these things. I mean, a week doesn't go by that you and I sitting upstairs don't have a conversation about why are they doing this? Why aren't we getting that? You know, this is becoming more and more common. So while it's sensational because it's a murder case and it's a hitman and everything else It's got neat it's got sexy facts.

Steve Palmer [00:26:11]:

It's

Paul Scarcello [00:26:11]:

got all kinds of sexy facts. But the real root issue is what's going on in the criminal justice system that these kinds of things are happening on a more routine basis? And I think that's should probably concern more people than just whether or not this happened in a murder case in Florida.

Steve Palmer [00:26:24]:

I would I would I I often I used to say all the time and I've tried many big cases as you have Paul. Every time I try a case, I find something that I I should have had. Meaning, something in discovery that the prosecutor was obligated by law to give me prior to trial and did not. And it's not always something that's a smoking gun helpful bit of information, but almost always I find something. And you would have to ask why. And and it's, I can't attribute that always to bad intent by prosecutors. I can't not always attribute it to bad intent by prosecutors. I think it's a combination of a couple of things.

Steve Palmer [00:27:01]:

And, Paula, I hear your thoughts on it. But I think one, we have poor training in prosecutors offices, often, where prosecutors are trained by the prosecutor who trained them, by training them, we train them. And I don't think there's a there's an always a clear understanding of what it means to be helpful to the defense. And what I what I mean by that is I have heard prosecutors say, well, yeah, we knew about that, but we didn't think it would help you. And my response is, you thought enough to consider whether it would help me, and it isn't it my choice as on the defense to decide if it's helpful. So they just are acting under this hat of misinformation. And then I think you have egos. I think you have, like you said, Paul, people just wanna win.

Steve Palmer [00:27:42]:

And, you know, this is a clashing of ideas. Anybody who's been in a in a dogfight of a trial, you know, we can be friends outside court having beers, but you get in the courtroom and all of a sudden, it's like game on. And it's hard not to take that personally as a even as a professional with experience, you wanna win. And I think prosecutors wanna win. They want the conviction. They got the victims. They still feel bad for people. They, you know, they wanna win.

Steve Palmer [00:28:06]:

And and then some somewhere in in the mix of all this, you have the bench. You have the judges, who I believe some do a great job policing this kind of stuff, some not so great. And it it it is a it's an endemic problem that has not been solved. And there was an effort to solve it. We talked about Brady versus Maryland. And that was a case where the US Supreme Court basically establishes that the government has a duty to turn over the helpful evidence, and then cases have sort of emerged about the consequences. And one consequence would be, the least drastic drastic measure would be, alright, the defense gets a continuance if they discover this before trial. If they discover it during trial, that a continuance doesn't work.

Steve Palmer [00:28:48]:

I mean, you're already in trial. Sometimes you get a mistrial, and maybe, they can't retry the the case. Sometimes it gets so bad that the judge dismisses it, or doesn't let the state use the evidence. So there's different remedies, but it it really, like anything else, I think, until there are drastic measures taken by a trial judge, the problem's gonna repeat. But the pro the trial judges don't take those measures because then they risk a guy like Tennant going free or Gonzales or Saldana. Yeah. I'd in my

Troy Hendrickson [00:29:16]:

head, there's just risk reward. We're already pretty far out from the trial. It's not gonna delay it too much more. And what we're gonna make this the the staple case of punishing prosecutors, we let potentially two alleged murderers go over it. Well and we don't know we don't know

Steve Palmer [00:29:32]:

if the prosecutor intentionally did something wrong here. We don't know all the facts. So we're sort of talking somewhat esoterically. But behind all this is the is the specter that there's more to it. Yeah. The defense doesn't know it, and they had to file a motion to get it. And I think part of

Paul Scarcello [00:29:49]:

it comes down to the simple idea from a having a having been a prosecutor for the majority of

Steve Palmer [00:29:55]:

my career. One of the

Paul Scarcello [00:29:56]:

things that I always was afraid of was waking up ten years down the road and realizing I had put somebody in prison who didn't belong there. That was a legitimate concern of mine. So I spent most of my time making sure that the cops did their job right, that we got the right guy, that if I was going to go to trial on a homicide case. And for the last ten years at the AG's office, that's pretty much all I did. I had and I had the ability and the luxury of working a limited number of cases, not like a whole docket in a county that most county prosecutors are dealing with. So I had the the ability to put that time into those cases. Having also worked as an assistant in a large county like Franklin County here in Columbus, you know, the docket gets crazy. You know, you have, on any given day, eighty, ninety, a hundred cases on your docket.

Paul Scarcello [00:30:44]:

Some of them you'd know from looking at are gonna be a real quick plea because it's a low level offensive theft or something along those lines. And the murder cases are a little bit more serious, but you've got so many other things on your docket. You only have so much time. So when you talked about training, I think part of it is also a resource issue. I don't think prosecutors offices get the resources that they need, both from a training standpoint as well as from the standpoint of allowing the assistant prosecutors in that office the time and effort to fully work their cases up. I also don't think that the culture in a lot of prosecutors' offices allows for that. It's highly important that a prosecutor's office understand that their job is to see that justice is done not to get a conviction. And I'm not sure that that happens a lot in most kind of prosecutors' offices.

Steve Palmer [00:31:31]:

So I

Paul Scarcello [00:31:31]:

think it's a resource issue. I think it's a culture issue. I think it also has to do with a training issue. And then sometimes, I just think it's a docket issue. There's just too many cases, and people are willing to kinda resolve it for a low level offense just to get it off the docket rather than doing what they should do, which is dismiss or something along those lines. So this ability about discovery and just the technology has changed everything between phone records, between body camera footage. There's just you and I started Steven, a murder case might be three witness statements and maybe a fingerprint if we were lucky.

Steve Palmer [00:32:05]:

If you're lucky.

Paul Scarcello [00:32:06]:

Yeah. Okay. So it was all about the people. So it was witness statements. So you would just go out and talk to them. Now it's phone records and ballistics and DNA.

Steve Palmer [00:32:14]:

Geo fencing.

Paul Scarcello [00:32:14]:

And geo fencing and warrants and, you know, just the time it takes to get through a homicide file these days is immensely larger than it was twenty years ago or so when we started.

Steve Palmer [00:32:25]:

Yeah. It's a chore.

Paul Scarcello [00:32:26]:

All of these things come together, and they don't make these issues less likely. They, unfortunately, probably make them more likely.

Steve Palmer [00:32:33]:

Yeah. The more work, the less time, and the less time, the less less you can attend to these details. But, well, look, we're gonna keep following this case. It's now I'm I'm sort of interested. But, you know, this is the kind of stuff that we're seeing in this case, and people are interested in it, but it's also the kind of stuff we see in all sorts of cases. So the idea here is just is to break it down, give you guys the we'll give you the legal ease part of it, but also break down and and make it simple. Because as I love to say, I I like to make things simple, and almost everything can be made simple. This is there there's something going on here.

Steve Palmer [00:33:07]:

The defense wants to hear more about it. The key witness in the case is seems to be pissing backwards. And, you know, I guess time will tell what that actually means as part of the case.

Troy Hendrickson [00:33:18]:

We have Becky in here too. She does, like she's pretty much the expert on this. Like, if you saw everything she has, it's amazing. So she's she knows everything on there.

Steve Palmer [00:33:25]:

So, Becky, we want you we wanna talk about the case with you or answer any questions that you may have. So that was probably more than anybody wanted on it, but you got it anyway. So this is lawyer talk breaking down the Fernandez Saldana case, and we will do more of this, I promise, off the record, on the air until now.