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A circuit judge has granted a defense motion for new trial in the death penalty case of John Allen Lee out of Sarasota County because the state withheld exculpatory evidence at trial.

Lee will face his third trial after the first ended in a mistrial and the motion for new trial was granted in the second. The jury recommended the death penalty for Lee before he won a new trial based on the state’s failure to disclose Brady material that potentially implicates a different killer.

The Herald Tribune reports that both prosecutors in the case, Karen Fraivillig and Andrea McHugh, were put on the stand to testify during hearings on the motion for new trial:

Dubensky ruled that the verdict was undermined by a “Brady violation” because of an email McHugh received — but did not place in evidence — regarding a possible love triangle between Lee and the victims.

In an email dated Sept. 12, 2012, Dorothy Stolte — the state’s witness — wrote: “These things I know to be true! . . . I also did not know, at the time, that Tracy was a liar. That she had been seeing Jason, as well as John, when John was in jail for those couple of days prior to the murders.”

Schlemmer holds that the statement could have substantiated claims that Salter and Nabergall were romantically involved. Lee contends that he witnessed Salter killing Nabergall, ran into Salter’s home, and became involved “in a life and death struggle,” the order states.

McHugh, the prosecutor, testified that she did not place the email into evidence because she felt it was consistent with a previous statement made by Stolte, that it would be inadmissable and that it was hearsay.

In his order, Dubensky scolded McHugh’s decision.

“It is not the province of the prosecutor to either characterize or categorize evidence that, no matter how remote it might seem to her, could be exculpatory,” Dubensky writes. “With respect to their discovery obligation, prosecutors should not determine the consistency or inconsistency of statements made by material witnesses. Prosecutors do not rule on issues of admissibility of evidence and they certainly do not limit disclosure by determining that it is rumor or hearsay.

“In a prosecution for first degree murder where the death penalty is sought, disclosure must be the first and last obligation.”

McHugh said the statement was consistent with Stolte’s words to a detective that Lee’s father said Lee “killed Traci and her boyfriend. And I didn’t even know Traci had any other boyfriend. Other than John.”

Dubensky disagreed that the email and Stolte’s statement to a detective are consistent.

“The state’s insistence that the statements are similar is disturbing,” Dubensky writes. “An alternative analysis of the statements suggests significant differences.”

Dubensky ruled that the violent history combined with evidence of an intimate relationship between Salter and Nabergall could have established motive and intent for Salter to kill Nabergall, as the defense claims.

The state attorneys office handling the case is apparently “still discussing” whether to pursue an appeal in the case. Nevertheless, the prosecutors’ boss, State Attorney Ed Brodsky, is standing by his assistant state attorneys. In a statement following the judge’s ruling, he said they were “both very ethical, very hardworking, very committed prosecutors.”


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