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Witness' credibility questioned

The testimony of Dorothy Schultz helped convict Walter Daniel Czubak of murder in 1988. Now, as Monday's scheduled retrial looms, Schultz's credibility is the subject of legal maneuverings.

The state is again banking on Schultz's testimony at Czubak's new trial, ordered by the Florida Supreme Court. But Czubak's attorney told a judge Wednesday that Schultz's psychological history might impugn her credibility as a witness.

During Wednesday's impromptu hearing, attorney William Sestak filed a motion asking that the public defender's office, which once represented Schultz, turn over its files on Schultz so he can review her psychological background.

Circuit Judge Lynn Tepper agreed to consider the request despite an argument from Assistant Public Defender William Eble that complying with Sestak's request would violate Schultz's client-attorney privilege and her right to privacy.

She ordered the public defender's office to deliver her the file by noon today for her examination. She also will examine any sealed psychological evaluations in the clerk of court's file on the case.

Czubak, who turned 44 on Wednesday, was sentenced to death for the 1985 strangulation of 81-year-old Thelma Peterson, a Zephyrhills woman with whom he briefly lived. Schultz, the state's key witness, was an acquaintance of Czubak and Peterson.

The public defender's office represented Schultz in 1981 when she was charged with battery of a law enforcement officer, Sestak said. A plea of not guilty by reason of insanity had been prepared, he said.

"There have been episodes of Dorothy Schultz's violent behavior throughout," Sestak said. One doctor described Schultz as having a hysterical personality, he said.

Tepper asked Assistant State Attorney Phil Van Allen to have Schultz in her courtroom today so she can ask her permission to release the records. If Schultz agrees, the tug-of-war will become moot.

If she does not, the judge will try to make a ruling by day's end after studying Schultz's files. If they show a clear pattern of unstable behavior, Tepper said Schultz's privacy and client-attorney rights may take a back seat to Czubak's right to a fair trial.

While Schultz's testimony helped land Czubak in prison, it also helped win him a second chance at freedom.

A comment Schultz made during Czubak's 1988 trial was one of two reasons the Florida Supreme Court gave for sending back the case. During testimony, Schultz mentioned that Czubak was an escaped convict, an issue the Supreme Court deemed irrelevant to the case at hand.

Sestak said there's no way to ensure that Schultz will refrain from making the comment during the new trial.

"There is no telling what will come out of her mouth," he said earlier this week.

The second point for reversal centered on photographs the state used during the 1988 trial of Peterson's decomposed body, which had been left in her house with her two small dogs.

The Supreme Court described some of the pictures as particularly gruesome and said they only served to inflame the jury, not to corroborate evidence against Czubak.

While the ruling states that the photographs of Peterson's body "shall not be admitted on retrial," Van Allen said he will make "an educated appraisal" of which pictures will be allowable.

"Some of the photographs are a great deal more important to me than the others," he said.