[continued]

ISSUE ONE

SUBSEQUENT TO HIS JUDGMENT AND SENTENCE, MR.

YURKO UNCOVERED NEWLY DISCOVERED EVIDENCE IN

THE FORM OF NATIONAL VACCINE ADVERSE EVENT

REPORTING SYSTEM DOCUMENTS DEMONSTRATING THAT

OF THE SIX VACCINATIONS GIVEN TO HIS SON JUST

SHORTLY BEFORE DEATH, AT LEAST ONE WAS A "HOT LOT"

VACCINE, AS DETERMINED BY THE FOOD AND DRUG

ADMINISTRATION; ADDITIONAL NEWLY DISCOVERED

EVIDENCE HAS BEEN UNCOVERED IN THAT NUMEROUS

MEDICAL PROFESSIONALS HAVE REVIEWED MR. YURKO'S

CASE AND DETERMINED THAT THE DEATH OF MR. YURKO'S

SON WAS IN FACT DUE TO THE VACCINATIONS , OF WHICH

AT LEAST ONE WAS A DOCUMENTED "HOT LOT", AND NOT

FROM SHAKEN BABY SYNDROME; AS SUCH, MR. YURKO'S

JUDGMENT AND SENTENCE SHOULD BE VACATED AND A

NEW TRIAL SHOULD BE GRANTED.

In order to be considered newly discovered evidence, for purpose of setting
aside a conviction, the evidence must have been unknown by the trial court, the
defendant, or by defense counsel at time of trial. Jones v. State, 709 So.2d 512 (Fla.
1998). Furthermore, it must appear that the defendant or his counsel could not have
known of the evidence by use of due diligence. Id. And, finally, the evidence must be
of such nature that it would probably produce acquittal on retrial. Id. In considering
whether the evidence would probably produce an acquittal, the trial court should
initially consider whether the evidence would have been admissible at trial or whether
there would have been any evidentiary bars to its admissibility. See Johnson v.
Singletary, 647 So.2d 106 (Fla.1994). Once the admissibility of the evidence is
determined, an evaluation of the weight to be accorded the evidence should look to
whether the evidence goes to the merits of the case or whether it constitutes
impeachment evidence. See Williamson v. Dugger, 651 So.2d 84 (Fla.1994). The
trial court should also determine whether the evidence is cumulative to other evidence
in the case. See State v. Spaziano, 692 So.2d 174, 177 (Fla.1997). The trial court
should further consider the materiality and relevance of the evidence and any
inconsistencies in the newly discovered evidence. Jones v. State, 709 So.2d 512, 521
(Fla. 1998). In order to fully evaluate the effect of newly discovered evidence on a
criminal case, the trial court would have to hold an evidentiary hearing to adequately
consider all of the factors set forth in Jones.

In the instant case, prior to and during trial, neither Mr. Yurko nor his attorney
was aware of the fact that Baby Alan's death was likely vaccine related. Neither Mr.
Yurko nor his attorney was aware that the DTaP vaccine which Baby Alan received
was one of the "hottest" (most dangerous) vaccine lots available. Said information
could not have been discovered through due diligence before or during Mr. Yurko's
trial. Mr. Yurko is not a doctor and was not schooled in the adverse effects of
vaccines, and presumably, neither was his attorney. It was due to Mr. Yurko's
persistence and the subsequent review of medical doctors that Mr. Yurko discovered
that Connaught Labs vaccine lot number 7H81507 was indeed a "hot lot" which had
caused injuries to other persons whom had received the same vaccine. Thus, even if
counsel and/or Mr. Yurko exercised due diligence in their investigation of Baby
Alan's death, it is still not likely that they would have realized that Baby Alan's
injuries were vaccine related. Mr. Yurko is not a doctor and, presumably, his
attorney did not have a medical background which would have allowed him provide a
medical diagnosis relating to Baby Alan's death. As such, it is clear that the new
evidence relating to Baby Alan's DTaP vaccine would not have been discovered
through the use of due diligence and thus satisfies the first condition set forth in the
Jones test for newly discovered evidence.

Additionally relevant to the question of due diligence is the fact that the data on
the events reported to VAERS in 1997 and 1998 was not available in its entirety at
the time of Mr. Yurko's trial. The complete data relating to Connaught Labs lot
#7H81507 was not fully available until somewhere around mid-1999. Therefore, the
VAERS data which related to Connaught Labs lot #7H81507 was not available at the
time of trial and consequently could not have been discovered through the use of due
diligence. Even if the VAERS data was available at the time of trial, trial counsel
likely would not have been able to obtain said information in time for trial. Mr. Yurko
obtained the VAERS information himself, but not without substantial delays. A
freedom of information action had to be filed in order to obtain said information and
Mr. Yurko had to wait a significant amount of time before actually receiving the
information requested. As such, it is apparent that even if the information was
available to counsel (which it was not in its complete form), counsel would not have
been able to obtain it through the use of due diligence in time to use such evidence at
trial.

It is respectfully suggested that an evidentiary hearing is necessary to determine
the second prong of the Jones test. While it is suggested that an evidentiary hearing
be granted to determine whether the newly discovered evidence would have resulted
in an acquittal if presented at trial, Mr. Yurko does present the following argument to
support his position that the evidence would have made a difference at his trial. It is
clear that the question of Baby Alan's vaccinations was never addressed by any of
the medical professionals/expert witnesses testifying at trial; this is true in regard to
both the prosecution and defense witnesses.

The primary question at trial centered around how Baby Alan received the
injuries that caused his death. The evidence that Baby Alan's death was vaccine
related would have cast substantial doubt on the prosecution's theory that Baby Alan
was a victim of SBS, especially in light of the numerous problems with the
prosecution's expert witnesses which are addressed in this memorandum.8 Of
course, many of the deficiencies of the prosecution's expert's theories went
substantially unchallenged. Unquestionably, the prosecution's theory that Baby Alan
died from SBS was never challenged with evidence that Baby Alan's death was the
result of an adverse reaction to his vaccinations.

The presentation of substantial evidence that Baby Alan died from an adverse
reaction to his vaccinations would have likely destroyed the prosecution's case and
demonstrated that Mr. Yurko was in fact innocent of the offenses with which he was
charged. The fact that there have been so many reports of adverse reactions to Baby
Alan's particular vaccination lot, in and of itself, is persuasive that Baby Alan's death
could have been caused by his vaccinations. When viewed in conjunction with the
conclusions of Doctors Buttram and Yazbak, a serious question arises as to whether
Baby Alan's death was the result of SBS or an adverse vaccination reaction. Expert
medical testimony that demonstrates that Baby Alan's death was vaccine related
would have cast substantial doubt upon the question of Mr. Yurko's guilt. In other
words, the State would not have been able to prove, to the exclusion of all reasonable
doubts, that Baby Alan died as the result of SBS. There is a substantial likelihood that
the jury would have had reasonable doubt about Mr. Yurko's guilt if the jury would
have been presented with expert testimony that Baby Alan's death was vaccine
related. As such, it is respectfully submitted that Mr. Yurko would probably have
been acquitted if the jury had been presented with the evidence relating to Baby
Alan's adverse reaction to his childhood vaccinations. Consequently, Mr. Yurko's
Judgment and Sentence should be vacated and a new trial should be granted wherein
Mr. Yurko can present the newly discovered evidence which strongly points towards
his innocence.

ISSUE TWO

IN THE ALTERNATIVE, IF THE EVIDENCE RELATING TO THE

"HOT LOT" VACCINE AND BABY ALAN'S ADVERSE REACTIONS

TO HIS CHILDHOOD VACCINATIONS COULD HAVE BEEN

DISCOVERED THROUGH DUE DILIGENCE OF COUNSEL, THEN

MR. YURKO WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL AS DEFENSE COUNSEL

FAILED TO, THROUGH DUE DILIGENCE, INVESTIGATE,

DISCOVER, AND PRESENT AT TRIAL, THE EXCULPATORY

EVIDENCE REGARDING THE VACCINE THAT LIKELY CAUSED

THE DEATH OF BABY ALAN; MR. YURKO WAS PREJUDICED

BY HIS ATTORNEY'S INEFFECTIVENESS AS THERE IS A

SUBSTANTIAL LIKELIHOOD THAT MR. YURKO WOULD HAVE

BEEN ACQUITTED HAD SAID EVIDENCE BEEN PRESENTED

TO THE JURY.

In order to demonstrate ineffective assistance of counsel a defendant must prove
both that his counsel performed deficiently and that the performance actually
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668 (1984). The two
prongs of the ineffectiveness inquiry are independent of one another, and thus, must
both be proved to establish a claim of ineffective assistance of counsel. Id. at 697. In
order to satisfy the "performance" prong of the Strickland test a defendant must show
that his counsel's representation fell below an objective standard of reasonableness.
Id. at 687-688. In Lockhart v. Fretwell, 506 U.S. 364 (1993), The United States
Supreme Court explained that "the 'prejudice' component of the Strickland test...
focuses on the question whether counsel's deficient performance renders the result of
the trial unreliable or the proceedings fundamentally unfair."

While it is vehemently argued that the evidence relating to Baby Alan's
vaccinations qualifies as newly discovered evidence, the undersigned recognizes the
possibility that this Honorable Court may hold that said evidence could have been
discovered through the use of due diligence. If it is held that the "newly discovered
evidence" relating to Baby Alan's vaccinations could have been discovered through
the use of due diligence, then logic dictates that defense counsel must not have used
due diligence in investigating Mr. Yurko's case. As such, the only possible conclusion
would be that defense counsel was ineffective in failing to discover said evidence. As
was argued in Issue One of this Memorandum, the evidence relating to Baby Alan's
adverse reaction to his childhood vaccinations would have provided Mr. Yurko with a
strong defense to the charges against him. Thus, if counsel did not exercise due
diligence to discover such a defense, then defense counsel's representation of Mr.
Yurko fell below an objective standard of reasonableness. As such, if the evidence in
question could have been discovered through the use of due diligence, then clearly
counsel's deficiencies in this regard would amount to ineffectiveness pursuant to the
Strickland test.

As was addressed above in Issue One of this Memorandum, Mr. Yurko's
defense to the charges against him would have been significantly strengthened had he
been able to present: (1) the evidence of Baby Alan's vaccination being from a "hot
lot"; and (2) the evidence that Baby Alan's death was likely the result of an adverse
reaction to his childhood vaccinations. There is a substantial likelihood that the
outcome of Mr. Yurko's trial would have been different had counsel used due
diligence and discovered the exculpatory evidence relating to Baby Alan's
vaccinations. As such, the prejudice to Mr. Yurko is clear. Thus, if this Honorable
Court determines that the evidence relating to Baby Alan's vaccines could have been
discovered through the use of due diligence, then it has been amply demonstrated that
Mr. Yurko was deprived of his right to effective assistance of counsel and the
prejudice resulting therefrom, as is required by Strickland. Consequently, Mr.
Yurko's Judgment and Sentence should be reversed and a new trial should be
granted so that Mr. Yurko can face the charges against him with the assistance of
effective counsel.

ISSUE THREE

MR. YURKO WAS DENIED HIS CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY

FAILED TO OBJECT AND MOVE FOR MISTRIAL WHEN THE

PROSECUTOR, IN HER CLOSING ARGUMENT, ARGUED FACTS

THAT WERE NOT IN EVIDENCE TO THE JURY TO IMPEACH

DEFENSE EXPERT WITNESS, DR. DOUGLAS SHANKLIN.

An attorney for a defendant in a criminal trial must be vigilant in protecting his
client from prosecutorial misconduct. An integral aspect of such vigilance is the
making of contemporaneous objections to overreaching by the prosecutor. Such
objections are essential to ensure a fair trial for a defendant. In fact, in recent years
the Florida Court's have expressed an increased concern about prosecutorial
misconduct in the context of closing arguments. See, Ruiz v. State, 743 So.2d 1
33(Fla. 1999) [improper comments of prosecutor during closing argument resulted in
reversal and remand for new trial]; Knight v. State, 672 So.2d 590 (Fla. 4th DCA
1996) [combination of personal attacks on defense counsel, arguing facts not in
evidence, and bolstering of police officer testimony in closing argument rose to level
of fundamental error destroying defendant's right to a fair trial].

In Ruiz v. State, 743 So.2d 1(Fla. 1999) the defendant was charged with first
degree murder. At trial, during closing arguments, the prosecutors made improper
comments including, but not limited to: (1) referring to evidence that was not
presented at trial; (2)calling the defendant a liar; and, (3) improperly appealing to the
emotions of the jurors. Id. On appeal Ruiz contended that the prosecutors engaged in
misconduct during closing argument in the guilt and penalty phases of the trial. Id.
The Florida Supreme Court agreed, stating that a criminal trial is a neutral arena
wherein both sides place evidence for the jury's consideration; the Ruiz Court further
noted that the role of counsel in closing argument is to assist the jury in analyzing that
evidence, not to obscure the jury's view with personal opinion, emotion, and
nonrecord evidence. Id. at 4. In so holding the Ruiz Court stated:

A criminal trial provides a neutral arena for the presentation

of evidence upon which alone the jury must base its determination

Of a defendant's innocence or guilt. Attorneys for both sides,

following rules of evidence and procedure designed to protect the

neutrality and fairness of the trial, must stage their versions of the

truth within that arena. That which has gone before cannot be

considered by the jury except to the extent it can be properly

presented at the trial and those things that cannot properly be

presented must not be considered at all. Id. at 4 (emphasis added).

Furthermore, the Ruiz Court went on to hold that except to the extent an attorney
bases any opinion in closing argument on the evidence in the case, he may not
express his personal opinion on the merits of the case or the credibility of witnesses.
Id. Furthermore, in closing argument, an attorney may not suggest that evidence
which was not presented at trial provides additional grounds for finding a defendant
guilty. Id.

As a result of the above, it was held that the improper arguments of the
prosecutor denied Ruiz his right to a fair trial. Particularly important to the Ruiz Court
was the fact that the trial was a "hotly contested credibility battle with conflicting
evidence and witnesses." Id. at 4. In light of the credibility contest, the State made
improper arguments in closing relating to the credibility of defense witnesses and
improperly bolstering prosecution witnesses. Id. at 5. As a result, the Florida Supreme
Court ultimately held that the prosecutors' actions were so egregious as to deny Ruiz
his right to a fair trial. In so holding the Ruiz Court noted: "[t]he present case is
precisely the scenario we feared in Hill --a bitterly contested swearing match between
competing witnesses, including eyewitnesses on both sides, where a defendant's life
hangs in the balance." Id. at 10. As such, the integrity of Ruiz' trial was tainted and
the case was reversed and remanded for a new trial. Id.

Just as in Ruiz, the instant case was a hotly contested credibility contest between
prosecution and defense witnesses. If the jury viewed the State's expert medical
witnesses to be more credible, then they would likely disregard the testimony of Dr.
Shanklin. And, just as in Ruiz, the prosecutor in the instant case made clearly
improper statements about Dr. Shanklin's credibility based upon matters that were
not admitted into evidence. Even worse, Prosecutor Wilkinson blatantly misstated
what the evidence demonstrated in regard to Dr. Shanklin's credibility. Finally, as in
Ruiz, the improper and misleading statements by the prosecutor tainted the
proceedings against Mr. Yurko and crippled Mr. Yurko's defense which relied
almost solely on Dr. Shanklin's testimony. The only major difference between the
instant case and Ruiz is that Mr. Ruiz raised the issue of prosecutorial misconduct on
direct appeal while Mr. Yurko is forced to now raise the issue as one of
ineffectiveness of counsel for failing to object to the prosecutorial misconduct.
Nevertheless, an ineffectiveness of counsel claim for failing to object to prosecutorial
misconduct is cognizable on a Rule 3.850 Motion for Post Conviction Relief.

The failure of defense counsel to make the necessary contemporaneous
objections to improper trial conduct was found to be ineffective assistance of counsel
in United States v. Wolf, 784 F.2d 1094 (7th Cir. 1986). In Wolf, the defendant was
convicted of violating two counts of the Mann Act. Id. During trial the prosecutor
asked numerous improper questions, including: (1) asking questions which were
calculated to demean the defendant in the eyes of the jury; and, (2) asking questions
which improperly insinuated that the defendant was guilty of crimes other than those
which he was charged with. Id. at 1098-1099. Defense counsel failed to object to the
improper prosecutorial questions.

The Seventh Circuit Court of Appeals of the United States held, in Wolf, that
defense counsel's failure to ever object to the improper instructions and prosecutorial
misconduct was "incomprehensible" and "forensic suicide." Id. at 1099. The court
stated that defense counsel's failure to make any contemporaneous objections "shifts
the main responsibility for the defense from defense counsel to the judge." Id. at
1099. Therefore, the Wolf Court held that defense counsel's deficient performance
was ineffective assistance of counsel and effectively denied the defendant his right to
a fair trial. Id. at 1099-1100.

In Gordon v. State, 469 So.2d 795 (4th DCA 1985), the defendant was
convicted of credit card fraud and grand theft. The trial transcripts revealed
numerous instances of improper questions or improper comments by the prosecutor
during the trial. Id. at 797-798. The defendant's trial counsel failed to object to any of
the improper comments and questions. The court in Gordon found that the trial
attorney's conduct constituted ineffective assistance of counsel and stated that
"counsel's conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result." Id. at 798.

In the instant case, Prosecutor Robin Wilkinson substantially misled the jury
during closing argument when she informed argued: "I SUBMIT TO YOU... THAT
YOU CAN REJECT EVERYTHING DR. SHANKLIN SAID, IF YOU FIND
THAT HE'S TESTIFYING IN AN AREA HE'S NOT AN EXPERT IN." (T.492).
Then the prosecutor grievously misrepresented the facts to the jury by telling them:

"...LO AND BEHOLD, HE'S DONE THAT [testified in

an area that he is not a witness in] BEFORE. WELL, HE

FORGOT ABOUT THE CASE IN TEXAS WHEN HE

WAS TESTIFYING. BUT, WHEN REMINDED

SPECIFICALLY OF THE NAME OF THE PLAINTIFF

HE WAS WORKING FOR, ALL OF A SUDDEN HE

REMEMBERED. AND HIS TESTIMONY WAS STRUCK.

IT WAS FOUND HE WAS TESTIFYING IN AN AREA

THAT WAS NOT SUPPORTED BY SCIENTIFIC

RESEARCH. DOES THAT GIVE YOU AN INFERENCE

OF WHERE DR. SHANKLIN IS COMING FROM?"

(T.493-494, emphasis added).

Prosecutor Wilkinson's statements to the jury were uncalled for, improper, and
clearly unsupported by the record. Nowhere in the trial transcripts was it
demonstrated that Dr. Shanklin testified in a Texas case in which his testimony was
stricken. The record is likewise void of any evidence that Dr. Shanklin ever testified
as to something that was not supported by scientific research. Prosecutor
Wilkinson's improper comments were unquestionably unsupported by the record and
amounted to an unfair attack on Mr. Yurko's defense. It appears that the State
intentionally argued improper impeachment issues in the instant case to destroy the
credibility of the defense's main expert witness. The unsupported attack on Dr.
Shanklin's credibility was a direct assault on Mr. Yurko's case and eviscerated Mr.
Yurko's defense.

It was crucial that the jury find Dr. Shanklin to be credible in order to accept
Mr. Yurko's defense. This is especially true when one considers that the potential
success of Mr. Yurko's defense hinged on Dr. Shanklin's testimony. Mr. Yurko
relied on Dr. Shanklin as his main expert witness to demonstrate that Baby Alan's
injuries were not trauma induced injuries. On the other hand, the State presented
numerous doctor's to support it's position that Baby Alan died from SBS. Thus, Mr.
Yurko's case was mainly a credibility contest between the battling experts. Once
Prosecutor Wilkinson misstated the facts as they pertained to Dr. Shanklin's
credibility, Mr. Yurko's defense was destroyed. Furthermore, the fact that defense
counsel failed to object to the improper impeachment argument served to irreparably
destroy any chance Mr. Yurko's defense may have had of succeeding.

Thus, just as in Ruiz v. State, 743 So.2d 1 (Fla. 1999), the prosecutor's
blatantly misleading statements to the jury in the instant case served to deprive Mr.
Yurko of a fair trial where his claims could be properly presented to a jury. Even
worse than in Ruiz, though, is the fact that defense counsel failed to object to the
prosecutor's devastating misstatements about Dr. Shanklin's credibility. Mr.
Yurko's defense relied almost entirely on the jury believing Dr. Shanklin's
testimony. Defense counsel's failure to object to the State's misleading statements
about Dr. Shanklin left the jury free to accept the State's position, and, thus, to
entirely disregard Dr. Shanklin's testimony. Defense counsel was clearly ineffective
in failing to object to the State's misrepresentations as to Dr. Shanklin's credibility.
The success of Mr. Yurko's defense rested squarely on the shoulders Dr. Shanklin.
There simply was no excuse for defense counsel's failure to object to the
prosecutor's damaging and deceptive arguments about Dr. Shanklin's credibility. As
in United States v. Wolf, 784 F.2d 1094 (7th Cir. 1986), counsel's failure to object
to the comments about Dr. Shanklin shifted the main responsibility for the defense
from defense counsel to the court and so undermined the outcome of Mr. Yurko's
proceedings so as to deprive him of his fundamental rights to a fair trial. And, as in
Gordon v. State, 469 So.2d 795 (4th DCA 1985), "counsel's conduct so undermined
the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result." Thus, it is respectfully submitted that both
ineffectiveness of Mr. Yurko's trial counsel, and resulting prejudice, have been
demonstrated. There is a substantial likelihood that had defense counsel objected to
the improper prosecutorial comments and moved for a mistrial, the outcome of the
instant case would have been different. As such, this Honorable Court should vacate
Mr. Yurko's conviction and grant him a new trial.

ISSUE FOUR

MR. YURKO WAS DENIED HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED

TO EFFECTIVELY IMPEACH DR. SASHI GORE ON CROSS

EXAMINATION WITH THE NUMEROUS INCONSISTENCIES,

FALSITIES, AND MISTAKES THAT WERE APPARENT IN

DR. GORE'S AUTOPSY REPORT.

It is clear that where the record does not indicate otherwise, trial counsel's
failure to impeach a key witness with inconsistencies constitutes ineffective assistance
of counsel and warrants relief. Tyler v. State, 793 So.2d 137 (Fla. 2nd DCA 2001).
Allegations in a post conviction motion regarding counsel's failure to impeach key
witnesses which are not conclusively rebutted by the record are proper for an
evidentiary hearing and should not be summarily denied. Brown v. State, 596 So.2d
1026,, (Fla. 1992); Smith v. Wainright, 741 F.2d 1248 (11th Cir. 1984).

In Smith v. Wainright, 741 F.2d 1248 (11th Cir. 1984), the Eleventh Circuit
Court of Appeals for the United States found that sufficient doubt existed regarding
the effectiveness of a murder defendant's trial counsel that an evidentiary hearing
should have been held by the federal district court. In Smith, the defendant was
implicated in a murder by another man named Johnson who claimed to have
participated in the killing and turned himself in to the police. Johnson testified to the
grisly events of the night of the murder, including a description of Smith's use of an
ice pick to stab the victim. In addition, Johnson's wife testified that her husband told
her that Smith was involved in the murder. Id.

On habeas appeal, the defendant argued that counsel was ineffective in failing to
utilize available evidence to impeach Johnson and his wife. The Smith Court agreed
that there was doubt that counsel had in fact rendered effective assistance on the
issue. Both witnesses had made pretrial statements to the police which were at
variance with the statements made at trial. The district court speculated that counsel
had reasonably chosen to emphasize Johnson's plea bargain for impeachment
purposes. The Eleventh Circuit, however, was unwilling to accept this explanation
without a hearing, stating:

"Use of these statements would have been totally

consistent with counsel's assumed strategy of showing

that Johnson implicated Smith only to save himself

from the electric chair." Id. at 1254.

Additionally, the Smith Court found that counsel's failure could very well have
been prejudicial to the defendant because the bulk of the State's case depended on
the Johnson's testimony. When first questioned concerning the killing, however,
neither witness implicated Smith in the murder. Only after Johnson spoke with his
wife did he hint that he had information about Smith- which he would only reveal
pursuant to a plea bargain in which he avoided the death penalty. The Smith Court
reasoned that the jury could have concluded that Johnson framed Smith, or that
Johnson first lied and later told the truth. "Nevertheless, the choice between the two
interpretations would have been one the jury could have made either way had they
heard the facts. The jury's choice could well have affected the outcome of the trial."
Id. at 1255.

In the instant case, Dr. Gore was the State's key witness. As in Smith, the bulk
of the State's case depended on the testimony of Dr. Gore. Therefore, as in Smith, it
was crucial that any problems with Dr. Gore's testimony be challenged by defense
counsel. Dr. Gore performed the autopsy on Baby Alan. There were no eyewitnesses
to Mr. Yurko's alleged abuse of Baby Alan. Therefore, the charges against Mr.
Yurko were ultimately based on Dr. Gore's conclusions regarding Baby Alan's
death. Due to the fact that Mr. Yurko was the last person with Baby Alan, and due to
Dr. Gore's conclusions, Mr. Yurko was charged in the instant case. Dr. Gore was
not an eyewitness to any abuse of Baby Alan, but given his position as an expert
medical witness, his testimony arguably was even more persuasive to a jury than that
of an eyewitness. Dr. Gore was an expert witness who had allegedly performed a
thorough autopsy on Baby Alan in order to come to the conclusion that Baby Alan's
death was the result of SBS. Mr. Yurko's case thus depended heavily on the jury
believing Dr. Douglas Shanklin instead of Dr. Gore. As such, Dr. Gore should have
been more thoroughly impeached on cross examination.

It was defense counsel's job to sufficiently impeach Dr. Gore on cross
examination. There were numerous inconsistencies and mistakes that were apparent
on the face of Dr. Gore's autopsy report, including:

1. The fact that in his autopsy report Dr. Gore listed Baby Alan as a
"two-month-old black male" (T.273), when in fact, Baby Alan was a white
male (T.273);

2. The fact that although he would need to get the child's caretaker history
in order to make a diagnosis of SBS, Dr. Gore never spoke to Alan Yurko nor
did he speak to Francine Ream (T.247-249);

3. That Dr. Gore could not demonstrate that he ever received a

sufficient medical history for Baby Alan (T.247-253);

4. That Dr. Gore could not even testify that he had received the birth

and pre-natal records for Baby Alan from Baby Alan's doctor (T.253);

5. That Dr. Gore testified that he "...REMOVED THE ANTERIOR

PART OF THE ENTIRE CHEST BONE AND THEN WE REMOVED

THE HEART, THE LUNGS, AND ALL THE ORGANS..." (T.218,

emphasis added), but, contrary to Dr. Gore's testimony, Baby Alan was an

organ donor and, thus, Dr. Gore would not have been able to remove the

heart and "...all the organs..." (T.218);

6. That Dr. Gore's report also indicated that there was a microscopic

examination of Baby Alan's heart, (See Autopsy Report, page 10), which

would have been impossible as Baby Alan's heart was one of the organs

which were harvested;

7. Dr. Gore's testimony that he never examined the heart (T.246);

8. The fact that the autopsy report prepared by Dr. Gore stated that

the circumference of Baby Alan's head was 22 centimeters (See Autopsy,

page 6), but, medical records prior to death indicate that the circumference

of Baby Alan's head was at least 32.5 centimeters and had increased during

his 10 weeks of life to 37.5 centimeters (See Exhibit F, Neonatal Record

Excerpts);

9. And, finally, in the autopsy report, Dr. Gore reported that Baby

Alan was two months old at the time of his death (See Autopsy, page 1 and

10) when, in fact, Baby Alan was ten weeks old at the time of death.

Many of the above inconsistencies and problems with the autopsy report were
not even touched upon in the cross examination of Dr. Gore. Had Dr. Gore been
more thoroughly impeached with the above information it is likely that the jury would
have significantly discounted the import of his testimony. How could the jury be
expected to believe the accuracy of Dr. Gore's complex medical findings when Dr.
Gore was not even accurate about such simple matters as Baby Alan's race, head
circumference and age? Furthermore, how could the jury be expected to accept the
accuracy of Dr. Gore's report when the report stated that he performed a
microscopic evaluation of Baby Alan's heart when, in actuality, the heart was not
available? These questions, along with the questions relating to Dr. Gore's
inadequate investigation of the caretaker history and medical history, certainly
indicate that Dr. Gore's autopsy results could not be relied upon.

As has already been noted in this motion, Mr. Yurko's trial was one where the
question of guilt hinged upon whether the jury accepted the testimony of Mr.
Yurko's expert witness, Dr. Douglas Shanklin, or the State's expert witnesses,
including Dr. Gore. Thus, Mr. Yurko's case contained battling expert witnesses. In
such a situation, the credibility of the expert witnesses is key. Therefore, it was
crucial to Mr. Yurko's case that Dr. Gore's testimony be discredited by defense
counsel with the numerous inconsistencies, falsities, and mistakes apparent in Dr.
Gore's autopsy report. It was clearly insufficient for counsel to only raise some of
the problems with the autopsy report when there were glaringly apparent mistakes
such as the fact that Dr. Gore could not have examined Baby Alan's heart since the
heart was harvested prior to the autopsy. It could have done nothing but helped Mr.
Yurko's case to raise all of the above delineated problems with the autopsy report in
order to impeach Dr. Gore. As in Smith, the State's case relied heavily on the
testimony of Dr. Gore. Consequently, Dr. Gore should have been impeached at
every possible opportunity. To let Dr. Gore's testimony go substantially unchallenged
cannot be excused by trial tactics and was clearly ineffective on the part of defense
counsel.

Furthermore, the prejudice to Mr. Yurko is clear. The instant case was one that
was had to be decided on the credibility of the expert witnesses. The fact that Mr.
Yurko was convicted in the instant case demonstrates that the jury found the State's
expert witnesses to be more credible than Mr. Yurko's expert witness, Dr. Douglas
Shanklin. Had Dr. Gore's testimony been impeached with the facts that clearly
established a shoddy autopsy investigation, the balance would have tipped in favor of
Mr. Yurko's expert witness, Dr. Shanklin. As such, there is a substantial likelihood
that the outcome of Mr. Yurko's trial would have been different had defense counsel
provided effective representation in the form of a thorough cross-examination of Dr.
Gore. As such, Mr. Yurko has demonstrated a facially sufficient allegation of
ineffectiveness of his counsel and resulting prejudice, as is required by Strickland.
Therefore, pursuant to Tyler v. State, 793 So.2d 137 (Fla. 2nd DCA 2001), Brown v.
State, 596 So.2d 1026 (Fla. 1992), and Smith v. Wainright, 741 F.2d 1248 (11th Cir.
1984), an evidentiary hearing should be granted on this issue.

ISSUE FIVE

SUBSEQUENT TO HIS JUDGMENT AND SENTENCE, MR.

YURKO UNCOVERED NEWLY DISCOVERED EVIDENCE

THAT STATE EXPERT WITNESS DR. MATTHEW SEIBEL IN

FACT DID NOT SPEAK TO FRANCINE REAM AT BABY

ALAN'S BEDSIDE; SAID EVIDENCE WOULD HAVE SERVED

TO IMPEACH DR. SEIBEL'S TESTIMONY AND THUS

STRENGTHEN MR. YURKO'S DEFENSE.

The standards for newly discovered evidence, as established by Florida case
law, have already been addressed in Issue One of this Memorandum. It is
respectfully submitted that the sign-in sheets for the hospital area in which Baby Alan
was located qualify as newly discovered evidence. Firstly, neither Mr. Yurko, his trial
attorney, nor this court, was aware at the time of trial of the existence of the hospital
sign-in log sheets as they pertained to Baby Alan. See, Jones v. State, 709 So.2d 512
(Fla. 1998). Furthermore, it is entirely possible that even with the exercise of due
diligence, Mr. Yurko's trial attorney could have failed to discover the hospital sign-in
log sheet which would have indicated that Dr. Seibel was lying about having spoken
with Ms. Francine Ream at Baby Alan's bedside. Id. Finally, the newly discovered
evidence of the sign-in sheets is of such nature that it would probably produce
acquittal on retrial. Id.

The likelihood of Mr. Yurko's acquittal on retrial, if Dr. Seibel were properly
impeached with the sign-in sheet, is substantial. This is especially so when one
considers that Mr. Yurko's trial was a credibility contest between Mr. Yurko's
expert witness, Dr. Douglas Shanklin, and the State's expert witnesses. Further
demonstrating the likelihood of acquittal is the fact that some of the jurors were
swayed by the testimony of the experts and the medical evidence.

Thus, it is clear that it was crucial for defense counsel to be able to attack the
State expert witnesses' credibility at every opportunity possible. It was established at
trial that it would be important for a doctor to speak with a child's caretaker to obtain
the child's history before ever rendering a diagnosis of SBS. Accordingly Dr. Seibel
testified that he spoke with Baby Alan's mother, Francine Ream, at Baby Alan's
bedside. (T.170-172). Ms. Ream testified, on the other hand, that she had never
spoken with Dr. Seibel. (T.330) Additionally, neither of Dr. Seibel's two reports
reflected that he spoke with Ms. Ream. (T.172). Therefore, as to the question of
whether Dr. Seibel ever spoke with Ms. Ream, the jury was basically left to
determine whether Dr. Seibel or Ms. Ream was telling the truth. The sign-in sheets
for the hospital area in which Baby Alan was kept would have indicated that Dr.
Seibel and Ms. Ream were never at Baby Alan's bedside at the same time. Such
evidence would have tipped the scales in favor of Ms. Ream's testimony. Therefore,
the evidence of the sign-in sheet would have given defense counsel an excellent
opportunity to impeach Dr. Seibel and demonstrate that he was not being honest with
the jury. This would have then called all of Dr. Seibel's conclusions into question,
including his conclusion that Baby Alan's injuries were the result of inflicted trauma
(i.e., SBS).

While it may be argued that such impeachment, in and of itself, would probably
not result in an acquittal on retrial, such an argument fails to take into consideration
the importance of attacking each and every one of the State's expert witnesses. It has
already been demonstrated that Dr. Gore's autopsy examination was sloppy,
inaccurate and unreliable. As such, if Dr. Gore would have been properly impeached
on cross examination, the State would have had one less expert witness to rely upon
for the conclusion that Baby Alan's injuries were due to SBS. As such, the State
would have had to rely more upon its other expert witnesses, such as Dr. Seibel, to
support its theory of SBS.

As has already been noted in this motion, Mr. Yurko's trial was one where the
question of guilt hinged upon whether the jury accepted the testimony of Mr.
Yurko's expert witness, Dr. Douglas Shanklin, or the State's expert witnesses,
including Dr. Seibel. Thus, Mr. Yurko's case was one with battling expert witnesses.
In such a situation, the credibility of the expert witnesses is key. Therefore, it would
have been extremely beneficial to Mr. Yurko's case for Dr. Seibel's testimony be
discredited by defense counsel with the hospital sign-in sheet to demonstrate that:
either, (1) Dr. Seibel was being dishonest with the jury about speaking with Francine
Ream at Baby Alan's bedside; or, (2) Dr. Seibel's memory about the events
regarding Baby Alan was not as clear as he asserted. Either way, the reliability and
trustworthiness of Dr. Seibel's testimony would have been called into question. Had
counsel been aware of the hospital sign-in log, it could have done nothing but help
Mr. Yurko's case to impeach Dr. Seibel on whether he ever actually spoke to
Francine Ream. Just as with Dr. Gore, the State's case also relied heavily on the
testimony of Dr. Seibel to help prove that Baby Alan's injuries were the result of
SBS. As such Dr. Seibel should have been impeached at every possible opportunity.

Consequently, it is clear, that the newly discovered evidence of the hospital
sign-in log sheet satisfies the three requirements of Jones v. State, 709 So.2d 512
(Fla. 1998). As such, Mr. Yurko's Judgment and Sentence should be reversed so
that Mr. Jones can present the newly discovered evidence at trial.

ISSUE SIX

IN THE ALTERNATIVE, IF THE EVIDENCE RELATING TO THE

HOSPITAL SIGN-IN SHEET COULD HAVE BEEN DISCOVERED

THROUGH DUE DILIGENCE OF COUNSEL, THEN MR. YURKO

WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL AS DEFENSE COUNSEL

FAILED TO, THROUGH DUE DILIGENCE, INVESTIGATE,

DISCOVER, AND PRESENT AT TRIAL, THE EVIDENCE OF THE

HOSPITAL SIGN-IN LOG; SAID EVIDENCE WOULD HAVE BEEN

EFFECTIVE IN IMPEACHING DR. SEIBEL AND, THUS CALLING

THE RELIABILITY OF HIS TESTIMONY INTO QUESTION.

It is respectfully submitted that the hospital sign-in log sheet evidence qualifies as
newly discovered evidence which, pursuant to Jones v. State, 709 So.2d 512 (Fla.
1998), requires that Mr. Yurko's Judgment and Sentence be vacated. However, if
this Honorable Court should find that the hospital sign-in log sheet is something that
could have been discovered through the use of due diligence, then it is argued, in the
alternative, that defense counsel was ineffective in failing to discover the evidence
and use it at trial.

If counsel could have discovered the evidence of the hospital sign-in sheet, then
counsel's conduct amounts to ineffective assistance of counsel which denied Mr.
Yurko his right to effective assistance of counsel pursuant to Strickland v.
Washington, 466 U.S. 668 (1984). Firstly, if the evidence relating to the hospital
sign-in sheet was discoverable through due diligence, then counsel should have
discovered it. Clearly counsel wanted to demonstrate that Dr. Seibel never spoke with
Francine Ream. Almost immediately upon beginning the cross examination of Dr.
Seibel, defense counsel began questioning whether Dr. Seibel ever spoke with
Francine Ream. (T. 170-172). Defense counsel further questioned Dr. Seibel about
the fact that Seibel never put it in his written reports that he spoke with Ms. Ream.
(T.172). Defense counsel also put Francine Ream on as a defense witness to
establish that Ms. Ream never spoke with Dr. Seibel. (T.330). Therefore, defense
counsel clearly felt that it was necessary to impeach Dr. Seibel's testimony that he
had spoken with Francine Ream. Nevertheless, defense counsel failed to discover the
hospital sign-in log and impeach Dr. Seibel with said evidence. If the sign-in sheet
was discoverable through the use of due diligence then defense counsel must have
conducted an inadequate investigation and failed to discover the crucial evidence. To
fail to discover necessary impeachment evidence which is discoverable, and would
have been helpful to the defendant, clearly falls below an objective standard of
professional reasonableness, and, thus, satisfies the ineffectiveness prong of
Strickland.

The prejudice to Mr. Yurko is also clear. The instant case was one that had to
be decided on the credibility of the expert witnesses. The fact that Mr. Yurko was
convicted in the instant case demonstrates that the jury found the State's expert
witnesses to be more credible than Mr. Yurko's expert witness, Dr. Douglas
Shanklin. It is already clear that counsel should have more thoroughly attacked Dr.
Gore's testimony to demonstrate that Gore's conclusions were not reliable.
Additionally, Dr. Seibel should have been more thoroughly impeached on cross
examination. Had Dr. Seibel's testimony been impeached with the hospital sign-in
sheet, the balance would have tipped in favor of Mr. Yurko's expert witness, Dr.
Shanklin. As such, there is a substantial likelihood that the outcome of Mr. Yurko's
trial would have been different had defense counsel provided effective representation
in the form of a thorough cross-examination of Dr. Seibel. As such, Mr. Yurko has
demonstrated a facially sufficient allegation of ineffectiveness of his counsel and
resulting prejudice, as is required by Strickland. Therefore, pursuant to Tyler v.
State, 793 So.2d 137 (Fla. 2nd DCA 2001), Brown v. State, 596 So.2d 1026 (Fla.
1992), and Smith v. Wainright, 741 F.2d 1248 (11th Cir. 1984), an evidentiary
hearing should be granted on this issue.

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