ISSUE NINE

MR. YURKO WAS DENIED HIS CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY

FAILED TO ADEQUATELY OBJECT TO THE ADMISSION OF

EVIDENCE OF BABY ALAN'S PRIOR RIB INJURIES; SAID

EVIDENCE WAS IRRELEVANT AND UNDULY PREJUDICIAL

TO MR. YURKO'S RIGHT TO A FAIR TRIAL.

Collateral crime evidence of prior bad acts shall not be admitted as evidence at a
criminal trial where admission of the evidence only serves to demonstrate bad
character or a propensity to commit said acts. Florida Statutes '90,404(2)(a).
Assuming the relevancy of the evidence to prove an issue other than bad character or
propensity, the trial court must determine whether there is clear and convincing
evidence that the defendant committed the alleged collateral acts. State v. Norris, 168
So.2d 541 (Fla. 1964); Phillips v. State, 591 So.2d 987 (Fla. 1st DCA 1991); and
West v. State, 579 So.2d 288 (Fla. 3rd DCA 1991). Specifically in the context of the
alleged abuse of a child, the trial court is required to determine that there is clear and
convincing proof that the defendant committed the alleged collateral crimes of abuse
prior to allowing evidence of such collateral acts into evidence. Smith v. State, 700
So.2d 446 (Fla. 1st DCA 1997). Furthermore, the failure of defense counsel to object
to such prejudicial and misleading evidence can amount to a denial of the defendant's
right to effective assistance of counsel. Fugate v. State, 691 So.2d 53 (Fla. 4th DCA);
and Cira v. State, 780 So.2d 175 (Fla. 2nd DCA 2001).

In Smith v. State, 700 So.2d 446 (Fla. 1st DCA 1997), the defendant, Jeremaine
Smith was charged with aggravated child abuse in relation to a head injury sustained
by his child. At trial the prosecution was allowed to introduce evidence of prior rib
fractures the child had suffered that were likely inflicted through abuse. Id. There
was no evidence presented which demonstrated that Smith was the person committed
the prior acts of abuse. Id. In her closing argument, the prosecutor argued the
importance of the old rib fractures, stating: "If there is any doubt about whether or
not this child was abused - - any forced speculative, possible doubt - - that would do
away with it." Id. On appeal the First District Court of Appeal for the State of Florida
held that the admission of the collateral crime evidence of prior abuse was error. Id.
The Smith Court held that "[b]ecause the prosecution did not present evidence
connecting the appellant with the prior abuse, evidence of the prior abuse should not
have been admitted before the jury." Id. at 447. The Smith Court further held that
the error could not be considered to be harmless beyond a reasonable doubt and as a
result reversed the conviction and remanded the case for a new trial. Id.

Just as in Smith, the charges against Mr. Yurko stemmed from his alleged abuse
of Baby Alan. As in Smith the prosecution in the instant case sought to have collateral
crime evidence of prior rib injuries admitted into evidence. As in Smith, in the instant
case there was no clear and convincing proof that Mr. Yurko inflicted the rib injuries
on Baby Alan. In fact, the State acknowledged that they could not prove that Mr.
Yurko was responsible for said injuries. As such, pursuant to Smith, the State should
not have been allowed to present the evidence of the injured ribs to the jury.

It is conceded that the State's argument to this Court regarding the admissibility
of the rib fractures certainly seemed persuasive. In fact it was persuasive to this
Court. Nevertheless, it is respectfully submitted that the State's reliance on Estelle v.
McGuire, 502 U.S. 62 (1991) was misplaced and was not controlling. In Estelle, the
United State's Supreme Court held that, under California law, evidence of prior
injuries to a child is relevant in a child abuse case even though said evidence does not
purport to prove the identity of the person who inflicted the injuries. Id. at 68.
However, California law does not control evidence questions in the State of Florida.
In Florida, such evidence of collateral crimes is not admissible in the absence of clear
and convincing evidence that the defendant committed such crimes. See Smith v.
State, 700 So.2d 446 (Fla. 1st DCA 1997). Consequently, Smith should have been
controlling on the question of the admissibility of the rib fracture evidence, not
Estelle.

Defense counsel presented no argument or authority whatsoever to counter the
State's incorrect and misleading argument that the rib fractures were admissible. The
failure of defense counsel to sufficiently challenge and object to irrelevant and
prejudicial evidence can amount to ineffectiveness of counsel which is sufficient to
require the reversal of a criminal conviction. Fugate v. State, 691 So.2d 53 (Fla. 4th
DCA) [because erroneous admission of a handgun in a prosecution for aggravated
assault with a firearm was not harmless, the defendant was entitled to an evidentiary
hearing on his postconviction claim that defense counsel was ineffective for failing to
object to the admission of the handgun]; and Cira v. State, 780 So.2d 175 (Fla. 2nd
DCA 2001).

In Cira v. State, 780 So.2d 175 (Fla. 2nd DCA 2001), following his trial, the
defendant was convicted of two counts of aggravated assault. Id. Mr. Cira filed a
Florida Rule of Criminal Procedure 3.850 Motion for Post Conviction Relief alleging
that his trial counsel was ineffective. Cira alleged his attorney was ineffective because
counsel stipulated to entry in evidence of a 9 millimeter gun, a knife, ammunition,
and holsters that had nothing to do with the offense he committed except that they
were located in his automobile. Id. Cira argued in his 3.850 that the admission of the
irrelevant evidence prejudiced him because the jury would view him as more likely to
commit the offense charged because he was "gun happy." Id. at 175-186. The trial
court summarily denied the 3.850 because the evidence was discovered due to a valid
search warrant. Id.

On appeal the Second District Court of Appeal reversed the trial court's
summary denial of Cira's 3.850. Id. at 176. The Second DCA held that the
"admission into evidence of weapons legally owned by Cira that had no connection to
the offense may have prejudiced him in the eyes of the jury and thus changed the
outcome of the trial." Id. It was therefore held that Counsel's stipulation to the
admission may have been prejudicial error. Id. As such, the District Court reversed
the lower court's summary denial of the 3.850 and remanded the case for the trial
court to either attach record portions which refuted Cira's claim or, in the alternative,
to conduct an evidentiary hearing. Id.

In the instant case, as in Cira, Mr. Yurko's attorney was responsible for
allowing irrelevant and prejudicial evidence in front of the jury. Had counsel put any
effort forth at all, it is likely that the evidence of the fractured ribs would not have
been presented to the jury. Unfortunately, though, defense counsel presented no
argument whatsoever to refute the State's argument in favor of admissibility.
Defense counsel only needed to present this Honorable Court with case authority
such as Smith v. State, 700 So.2d 446 (Fla. 1st DCA 1997) to effectively challenge
the State's position. Even a half-hearted attempt on defense counsel's part would
have informed this Court of the controlling case law. Defense counsel, though,
allowed the State's erroneous position on the admissibility of the evidence to stand
unchallenged. Consequently, the rib fracture evidence was allowed into evidence.
Unquestionably, counsel's failure to sufficiently challenge the irrelevant and
prejudicial evidence fell well below an objective standard of professional
reasonableness. Therefore, the ineffectiveness prong of Strickland has been
sufficiently demonstrated. Additionally, Mr. Yurko did suffer prejudice as a result of
his attorney's ineffectiveness.

As in Cira, the admission of evidence that had no connection to the offense may
have prejudiced Mr. Yurko in the eyes of the jury and thus changed the outcome of
the trial. In fact, there is a substantial likelihood that the outcome of the trial would
have been different had counsel challenged the admission of the evidence of alleged
prior abuse. The evidence of the injured ribs was presented to the jury to indicate
that Baby Alan was an abused child. The clear implication of the evidence was that
Mr. Yurko was the abuser. There could have been no other reason to present such
evidence. The presentation of said evidence served only to sway the jury emotionally
and to demonstrate bad character and/or a propensity for abuse on the part of Mr.
Yurko. One can easily see how prejudicial such evidence was. Although there was no
evidence at all to tie Mr. Yurko to the alleged prior abuse of Baby Alan, the State
effectively was able to imply to the jury, with no basis whatsoever, that Baby Alan
was repeatedly abused in the past and that Mr. Yurko was the abuser. The prejudicial
impact of such evidence cannot be denied. Juror Edward Russell admitted that the
evidence of prior injuries was in part what swayed him to convict Mr. Yurko. (See
Exhibit, Russell's answer to question #8). There could be no clearer indication of
prejudice. 32 Had the prior abuse evidence been properly excluded, there is a
substantial likelihood that Mr. Yurko would not have been convicted. As such, Mr.
Yurko's Judgment and Sentence should be reversed and a new trial should be
granted.

ISSUE TEN

THE CUMULATIVE EFFECT OF THE TRIAL ATTORNEY'S

NUMEROUS DEFICIENCIES AND OTHER ERRORS RELATING

TO THE MR. YURKO'S TRIAL SEVERELY PREJUDICED MR.

YURKO'S RIGHT TO A FAIR TRIAL AND DEPRIVED MR.

YURKO OF HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE

ASSISTANCE OF COUNSEL AND A FAIR TRIAL.

The cumulative impact of an attorney's deficiencies at trial can prejudice a
defendant and deprive him of his Sixth Amendment right to effective assistance of
counsel. Harris by and through Ramseyer v. Wood, 64 F.3d 1432 (9th Cir. 1995);
see also, Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992). ["...significant errors
occurred that, considered cumulatively, compel affirmance of the district court's
grant of habeas corpus as to the sentence of death."]; Cooper v. Fitzsimmons, 586
F.2d 1325 (9th Cir. 1972) [ "prejudice may result from cumulative impact of multiple
deficiencies."]. This is so even where no single error of omission of the counsel,
standing alone, significantly impairs the defense. Ewing v. Williams, 596 F.2d 391
(9th Cir. 1979).

In Harris by and through Ramseyer v. Wood, 64 F.3d 1432 (9th Cir. 1995), the
United States Circuit Court for the Ninth Circuit held that the cumulative impact of
an attorney's trial errors and deficiencies could prejudice a defendant and amount to
a denial of effective assistance of counsel. Mr. Harris' counsel committed numerous
errors in the course of the defendant's trial, including: (1) failure to investigate and
prepare adequately for trial; (2) failure to consult adequately with the defendant; (3)
failure to adequately investigate the defendant's emotional status; (4) failure to
challenge admissibility of the defendant's statements to prosecutors; (5) failure to
conduct proper voir dire; (6) failure to object to evidence; (7) failure to propose or
except to jury instructions; (8) improperly advising the defendant to make a statement
to the prosecutors; (9) improperly calling the defendant to testify at trial; and, (10)
making improper comments during the closing argument. Id. at 1438. The Harris
Court found that the cumulative effect of the attorney's errors prejudiced the
defendant's ability to receive a fair trial, thus rendering the attorney's representation
ineffective. Id.

In Henry v. State, 652 So.2d 1263 (4th DCA 1995), the Fourth District Court of
Appeal for Florida found that the cumulative effect of the trial counsel's errors
prejudiced the defendant and amounted to a denial of effective assistance of counsel.
In Henry, the defendant's trial counsel committed numerous errors, including: (1)
calling the victims mother to testify without ever having interviewed her, with the
result that the mother gave evidence corroborating the testimony of the victim; (2)
not objecting to the investigating officer's testimony that she was an expert in reading
body language, and that, in her opinion, the victim was telling the truth; and (3) not
objecting to improper aspects of the state's final argument. Id. at 1264. After
considering the numerous errors of the trial counsel, the Court held that "[d]ue to the
number of failures and their sheer pervasiveness... we are bound to conclude that the
deficient performance of counsel prejudiced the defense." Id. at 1264.

In the instant case, each and every one of the issues presented in Mr. Yurko's
3.850 Motion are sufficient, in and of themselves, to justify the granting of Mr.
Yurko's Postconviction Motion. When viewed cumulatively, there is no question that
Mr. Yurko was denied his right to a fair trial. The following errors of counsel and/or
deficiencies of the trial process, when considered cumulatively, point to the
conclusion that the proceedings against Mr. Yurko were not fair and should be
vacated:

1. The fact that newly discovered evidence demonstrates that

Baby Alan's death was likely vaccine related and not the result of SBS;

2. The fact that if the vaccine evidence was discoverable through

due diligence of counsel, that defense counsel was ineffective for

failing to discover said evidence and present it to the jury in defense of

Mr. Yurko;

3. The fact that defense counsel failed to object and move for

a mistrial when the prosecutor argued extremely prejudicial facts to the

jury that were never admitted into evidence in order to impeach defense

expert witness, Dr. Douglas Shanklin.

4. The fact that trial counsel failed to impeach the testimony of

Dr. Sashi Gore with the myriad inconsistences, falsities, and mistakes

that were apparent in Dr. Gore's autopsy report.

5. The fact that subsequent to his Judgment and Sentence, Mr.

Yurko uncovered newly discovered evidence that Dr. Seibel in fact did

not speak to Francine Ream and said evidence could have been used

to impeach Dr. Seibel;

6. The fact that much of the medical/scientific evidence presented

by the State to prove SBS was not based upon generally accepted medical

theories and was misleading to the jury;

7. The fact that the current generally accepted medical/forensic

position on DAI is that it generally should not be used to diagnose abuse;

8. The fact that counsel failed to adequately object to the admission

of the extremely prejudicial evidence of the prior rib injuries when there

was no evidence whatsoever to tie said injuries to Mr. Yurko; and,

9. The fact that juror Edward M. Russell, Jr., disregarded Mr.

Yurko's constitutional right to not testify and Mr. Russell considered

the failure to testify to be "self-incriminating." (See Exhibit D, page 10)

Almost any one of the above errors was sufficient in and of itself to find that
Mr. Yurko was denied his right effective assistance of counsel and a fair trial. 33
And, when one considers the sheer number of deficiencies and their cumulative
impact on Mr. Yurko's trial, it is clear that Mr. Yurko's right to a fair trial was
prejudiced. Firstly, as has been previously noted, Mr. Yurko's trial was one where
the verdict hinged on which experts the jury believed.34 In such a credibility battle,
the State's expert witnesses should have been impeached whenever possible. As has
been delineated in this memorandum, there was an abundance of opportunities for
defense counsel to attack the testimony of the State's expert witnesses.
Unfortunately for Mr. Yurko, though, defense counsel was derelict in his duties to
effectively cross examine the State's witnesses with the considerable amount of
impeachment material that was available. As such, defense counsel allowed the
State's numerous expert witnesses' testimony to stand unchallenged.

The jury should have been made aware of the plethora of problems with the
State's expert witness testimony. The jury should have heard about the fact that Dr.
Gore's autopsy report was rife with inconsistences and impossibilities and was thus
unreliable. The jury should have heard about the fact that the State's expert witness
testimony was simply wrong and not based upon generally accepted medical theories
in numerous respects. And, the jury should have been made aware that the State's
expert witnesses were not even being honest about such simple matters as whether
they spoke with Baby Alan's mother.

Defense counsel should have chipped away at the State's expert witnesses'
testimony whenever possible and this was not done. As such, defense witnesses Dr.
Douglas Shanklin's testimony was substantially undermined. Essentially, the jury saw
that Mr. Yurko had one doctor testifying that Baby Alan did not die of SBS while the
State had numerous witnesses (who were in large part left unimpeached) testifying
that Baby Alan died of SBS that could be attributed only to Mr. Yurko. The
imbalance in the number of expert witnesses in favor of the State certainly would
have been persuasive to the jury. 35 This is especially so since the jury was given no
reason to disbelieve the testimony of any of the State's expert witnesses. And, to add
insult to injury, defense counsel then failed to object and move for a mistrial when
the State began improperly attacking Dr. Shanklin's credibility during closing
arguments. The cumulative impact of counsel's deficiencies was devastating to Mr.
Yurko's ability to successfully present his defense. As such, Mr. Yurko was
effectively deprived of any defense whatsoever. Therefore, the prejudice to Mr.
Yurko is clear. There is a substantial likelihood that the outcome of Mr. Yurko's trial
would have been different had defense counsel, inter alia, adequately impeached the
State's expert witnesses and objected to the prosecutorial misconduct. When all of
the issues presented in Mr. Yurko's Postconviction Motion are viewed together,
there is no doubt that he was denied his right to effective assistance of counsel and to
a fair trial. As such, Mr. Yurko's conviction should be vacated and he should be
granted a new trial where he can be represented by effective counsel and have the
ability to prove to a jury what actually caused the death of Baby Alan.

CONCLUSION

Based upon the foregoing arguments and citations of authority, it is clear that
Mr. Yurko's Judgment and Sentence should be vacated and his case should be
remanded for a new trial.

WHEREFORE, Mr. Yurko respectfully moves this court to:

1. Grant this Motion for Post Conviction Relief, vacate the Judgment and

Sentence as entered, and remand this cause for de novo jury trial proceedings;

or, in the alternative,

2. Order the Respondent to show cause as to why this Motion should not be

granted; and thereafter, prior to the adjudication of this motion.

3. Order a full and fair evidentiary hearing with Mr. Yurko present and

represented by counsel, in order for Mr. Yurko to sustain, if necessary, his

burden of proof and persuasion; or in the alternative,

4. Grant any other or further relief as this Court deems necessary in the

interest of justice.

Respectfully submitted,

_________________________

Loren D. Rhoton

FBN: 0055735

412 Madison Street

Suite 412

Tampa, Florida 33602

(813)226-3138

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by
regular U.S. Mail, this ___ day of ____________, 2002, to the Office of the State
Attorney, P.O. Box 1673, Orlando, Florida 32802.

_________________________

Loren D. Rhoton

OATH

Under penalties of perjury, I declare that I have read the foregoing
memorandum and that the facts stated in it are true.

______________________

Alan Yurko

1 It now appears that Baby Alan's death was caused by an adverse reaction to his childhood
vaccinations which included a DTaP (Diphtheria Tetanus and Pertussis) vaccination. The high
lymphocyte count is now relevant as a predominance of lymphocytes in the white blood count is a
hallmark of a pertussis reaction.

2 It is submitted that Dr. Guedes stated "intraparenchymal" and was misinterpreted by the court
reporter as "interbrachial."

3It is additionally interesting to note that when defense witness, Dr. Douglas Shanklin, received
copies of the microscopic slides that were used for the autopsy, he did not receive a slide containing a
piece of the heart muscle. (T.359).

4 As will be demonstrated at an evidentiary hearing (if one is granted) Dr. Gore's testimony that
DAI is microscopic hemorrhages is completely incorrect. In no way is DAI a hemorrhage.

5 It is not clear from the record what was used.

6The lot number of the DTaP vaccination that Baby Alan received on November 11, 1997. See
Exhibit C, Vaccine Administration Record.

7 Dr. Harold Buttram, MD, FAAEM, is a medical doctor trained in environmental
medicine/toxicity (inter alia) and is the author of numerous books on the subject. Dr. F. Edward
Yazbak is a Fellow of the American Academy of Pediatrics trained in pediatric infectious diseases and
a former chief of pediatrics of a major New England hospital.

8 See Issues 4,5,6, and 7 of this memorandum.

9Garcia VF, Gotschall CS, Eichelberger MR, Bowman LM. Rib fractures in children: a marker
for severe trauma. J Trauma 1990:30:695-700.

10Smith DC, Kearns TP, Sayre GP. Pre-retinal and optic nerve sheath hemorrhage: pathologic
and experimental aspects in subarachnoid hemorrhage. Trans Am Acad Opthalmol Otolaryngol 1957;
61:201-211.

11Lehman RAW, Krupin T, Podos SM. Experimental effect of intracranial hypertension upon
intraocular pressure. J Neurosurgery 1972; 36:60-66.

12Greenwald MJ, Weiss A, Osterle CS, Friendly DS (with "Discussion" by Tongue AC).
Traumatic retinoschisis in battered babies. Opthalmol 1986; 93-618-624.

13Vanderlinden RG, Chishold LD. Vitreous hemorrhages and sudden increased intracranial
pressure. J Neurosurgery 1974; 167-176.

14Kirshner RH, Stein RJ. The mistaken diagnosis of child abuse. A form of medical abuse? Am J
Dis Child 1985; 139:873-875.

15Weedn VW, Mansour AM, Nichols MM. Retinal hemorrhage in an infant after
cardiopulmonary resuscitation. Am J Forens Med Path 1990; 11:79-82.

16David DB, Mears T, Quinlan MP. Ocular complications associated with bungee jumping. Br J
Opthalmol 1994; 78:234-235.

17Jain BK, Talbot EM. Bungee jumping and intraocular hemorrhage. Br J Opthalmol 1994;
78:236-237.

18Smith DC, Kearns TP, Sayre GP. Pre-retinal and optic nerve sheath hemorrhage: pathologic
and experimental aspects in subarachnoid hemorrhage. Trans Am Acad Opthalmol Otorlaryngol
1957; 61:201-211.

19Lehman RAW, Krupin T, Podos SM. Experimental effect of intracranial hypertension upon
intraocular pressure. Supra, fn. 30.

20Vanderlinden RG, Chisolm LD. Vitreous hemorrhages and sudden increased intracranial
pressure. J Neurosurg 1974; 41:167-176.

21Edlow JA, Caplan LR. Avoiding pitfalls in the diagnosis of subarachnoid hemorrhage. N Engl
J Med 2000; 342:29-36.

22Nashelsky MB, Dix JD. The time interval between lethal infant shaking and onset of symptoms:
a review of the shaken baby syndrome literature. Am J Forensic Med Pathol 1995; 16:154-157.

23Plunkett J. Restricting the time of injury in fatal inflicted head injuries [leuer]. Child Abuse Negl
1998; 22:943-4.

24Plunket J. Fatal Pediatric Head Injury Caused by Short-Distance Falls. Am J Forensic Med
Pathol 2001; 22;1-12.

25 Plunket J. Fatal Pediatric Head Injury Caused by Short-Distance Falls. Am J Forensic Med
Pathol 2001; 22;1-12.

26Willam KY, Bank DE, Senac M, et al. Restricting the time of injury in fatal inflicted head
injuries. Child Abuse Negl 1997; 21:929-40.

27 A Ct Scan showed a small subdural hemorrhage on one side upon admission to the hospital.
But, the autopsy revealed two bilateral subdural hemorrhages which were massive in size and could
only have occurred while in the hospital.

28 "BUT THEN THERE'S DR. SHANKLIN JUST OUT THERE BY HIMSELF. AND
WHAT ELSE DOES DR. SHANKLIN HAVE DIFFERENT THEORIES ON? WELL, BACK
IN OCTOBER OF LAST YEAR HE BELIEVED THAT THE RIB FRACTURES, ONE OF THE
POSSIBILITIES IS THAT IT OCCURRED AT BIRTH. AS YOU HEARD FROM ALL OF THE
STATES PHYSICIANS, RIB FRACTURES DON'T OCCUR AT BIRTH, MAYBE A
CLAVICLE BUT NOT RIB FRACTURES. IN FACT, THERE'S SOMETHING VERY UNIQUE
ABOUT RIB FRACTURES. THEY'RE DIAGNOSTIC OF ABUSE..." (T.501-502, emphasis
added).

29 "AS WE'VE GONE THROUGH THIS CASE, YOU'VE HEARD FROM THE
DEFENSE THAT OH, MAYBE THERE'S SOME OTHER REASONS. DR. SHANKLIN'S
OUT THERE ON AN ISLAND IN THE MIDDLE OF THE SEA, LADIES AND
GENTLEMEN. HE DISAGREES WITH DR. HANNA, THE RADIOLOGIST, EVEN
THOUGH HE'S TOLD YOU THAT HE'S NOT AN EXPERT IN THAT AREA.

"HE LOOKED AT THE CAT SCAN. THERE WAS NOT A SUBDURAL AT THAT TIME.
QUITE INTERESTING THAT DR. GUEDES, WHO WAS TREATING THE CHILD AND
TRYING TO SAVE THE CHILD'S LIFE SAW ONE. QUITE INTERESTING THAT DR.
SEIBEL, WHO CAME IN TO REVIEW WHAT OCCURRED TO THIS CASE, SAW ONE.
QUITE INTERESTING THAT UPON AUTOPSY DR. GORE SAW ONE AND BELIEVES
IT'S CONSISTENT WITH OCCURRING PRIOR TO THE CHILD BEING PLACED IN THE
HOSPITAL." (T.500, emphasis added).

30 "YOU HEARD AGAIN THAT THERE WERE X-RAYS THAT SHOWED THAT THE
CHILD DIDN'T HAVE RIB FRACTURES AFTER BIRTH. DR. SHANKLIN, ONCE AGAIN
OUT THERE BY HIMSELF." (T.501).

31 "NOW, ONCE AGAIN, IS THIS DR. SHANKLIN JUST LOOKING OUT FOR
SOMETHING. BECAUSE ONCE AGAIN HE'S OUT THERE BY HIMSELF. HE'S THE
ONLY ONE." (T.502).

32 The State was obviously aware of how prejudicial the evidence of the rib injuries was to Mr.
Yurko's defense. In a successful effort to further prejudice the jury the prosecutor argued to the jury in
closing that: "...THERE'S SOMETHING VERY UNIQUE ABOUT RIB FRACTURES. THEY'RE
DIAGNOSTIC OF ABUSE..." (T.502)

33 While Mr. Russell's failure to respect Mr. Yurko's 5th amendment right to remain silent is not
now sufficient to overturn the conviction on collateral attack [see, Devoney v. State, 717 So.2d 501
(Fla. 1998)], it is still something that can, when considered along with all of the other issues in this
memorandum, point to the cumulative unfairness of Mr. Yurko's trial and the necessity for a retrial.
See, Ewing v. Williams, 596 F.2d 391 (9th Cir. 1979).

34 Any question about the importance of the expert witnesses can be resolved by a review of the
juror questionnaires where several of the jurors indicated that it was the medical evidence and the
testimony of the expert witnesses that convinced them as to Mr. Yurko's guilt. See Exhibit D).

35 The State's closing argument itself demonstrated how important it was to impeach each and
every one of the State witnesses when the prosecutor argued about "...THE YEARS OF
EXPERIENCE BETWEEN DR. GUEDES, DR. SEIBEL, DR. GORE, DR. HANNAH [and] DR.
PEARL...". (T.542).

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