[00:00:00] Speaker 05: Thank you. [00:00:01] Speaker 05: Please be seated. [00:00:08] Speaker 05: Good morning. [00:00:08] Speaker 05: Welcome to the Ninth Circuit Court of Appeals. [00:00:10] Speaker 05: My name is Morgan Christen. [00:00:11] Speaker 05: My chambers, I'm one of the circuit court judges, and my chambers are in Anchorage, Alaska. [00:00:16] Speaker 05: I have the pleasure this week of sitting with two of my colleagues from the circuit court, Judge Clifton, whose chambers are in Honolulu. [00:00:32] Speaker 05: We have three cases that are submitted on the briefs today, and I'll just read those first, but we will not be hearing argument in the following cases, 24-1285 Go Batten, 24-231 Alaria v. State Farm, and 24-5958 Kamal v. United States District Court for the Southern District of California. [00:00:57] Speaker 05: The first case on the oral argument calendar is Casillas v. Clark. [00:01:04] Speaker 05: You're welcome to come on up to the lectern. [00:01:07] Speaker 05: It's just going to take me one second to get myself situated here. [00:01:19] Speaker 05: Okay, I'm all set. [00:01:20] Speaker 03: Good morning, Your Honors, and may it please the Court of Dale Ogden for Marco Casillas. [00:01:24] Speaker 03: I'm going to try to reserve two minutes time for a bottle and I'll watch the clock. [00:01:27] Speaker ?: You got it. [00:01:29] Speaker 03: There is strong evidence that someone else committed this murder. [00:01:33] Speaker 02: Well, counsel, the trial court convened a mid-trial hearing, an evidentiary hearing, did it not, in order to test the reliability and admissibility of the proffered evidence? [00:02:03] Speaker 02: and made findings that the evidence was inadmissible under any recognized exception to the rules against hearsay and also unreliable. [00:02:14] Speaker 02: How does that amount to a due process violation? [00:02:18] Speaker 03: Part of the problem, Your Honor, is that the hearing you're referencing just focused on Miller and the letter that Miller wrote alone and didn't look at all the corroboration because before that there was a hearing [00:02:34] Speaker 03: investigator Volpe testified at length to why he believed Raymond Perez murdered Jake Bush and defense counsel had proposed admitting this evidence through quite a bit more than just Miller's letter but then the court said something the effect of it's in footnote one of my brief because no rule of evidence would allow Volpe testifying to his investigation. [00:02:55] Speaker 03: Volpe would essentially be testifying to hear [00:03:08] Speaker 03: So, you know, for example, a lot of Raymond Prez's conduct, like upon his arrest and his escape from custody, his paranoia about being investigated for the murder, his seeming knowledge of the [00:03:38] Speaker 05: I think Judge Talbot may be going to the same thing. [00:03:42] Speaker 05: I take your point regarding chambers and third party culpability evidence and how important your client viewed that evidence. [00:03:53] Speaker 05: But even with that, I think there are some [00:04:07] Speaker 05: happen very often. [00:04:09] Speaker 05: But pursuant to the Chamber's line, I think, I'm not pushing back on that, is what I'm trying to say. [00:04:13] Speaker 05: I'm not pushing back on that. [00:04:15] Speaker 05: But those cases involve evidence. [00:04:16] Speaker 05: I think Judge Taumann's going right to it. [00:04:18] Speaker 05: The excluded evidence has real indicia of reliability. [00:04:24] Speaker 05: So it's very unsettling that the jury never heard it, right? [00:04:27] Speaker 05: And we really look at, was this trial fair? [00:04:45] Speaker 05: Miller had all kinds of reasons to say, right, that he was in jail, that he was doing deals, that he doesn't even remember. [00:04:53] Speaker 05: He said, that looks like my handwriting, but I can't even tell you if I... So right there, if the declarant can't say that it's reliable and actually gives us a lot of reasons to think it's not, it's a very steep hill. [00:05:05] Speaker 05: So what's your best shot? [00:05:06] Speaker 03: So I think this is the core of the problem. [00:05:19] Speaker 03: all the circumstances surrounding that. [00:05:21] Speaker 03: So I think the biggest issue of reliability are all the corroboration that that note had right, for example, [00:05:32] Speaker 05: in the closet and detailed his escape, Volpe testifies, those were- So to just finish that, you're thinking that the letter, that he knew stuff he wouldn't have known if he hadn't been there, is that the gist of it? [00:05:42] Speaker 03: Yeah, and that's what this court in Gable says, you know, when it's non-public, that's a big deal. [00:05:47] Speaker 05: Okay, but the non-public was the jewel [00:05:57] Speaker 03: all of those details were non-public is what he says. [00:06:00] Speaker 02: What about the forensic evidence? [00:06:02] Speaker 02: I mean, clearly the trial court was aware, was it not, that not only was there a DNA match to the feces in the closed basket in the closet, but also palm prints that clearly put Casillas at the scene. [00:06:18] Speaker 02: And then we have the witness testimony from the neighbors who saw the [00:06:33] Speaker 02: the stabbing occurred. [00:06:36] Speaker 03: So I think that's that's precisely why I think this is prejudicial because that is the overwhelming majority of the state's case is that Casillas was there. [00:06:45] Speaker 03: Casillas, as he had to, conceded he was there at some point that day, right? [00:06:49] Speaker ?: Right. [00:06:49] Speaker 00: But his defense was [00:07:14] Speaker 05: Maybe he was there alone. [00:07:15] Speaker 05: Maybe he was there with someone else. [00:07:17] Speaker 05: He wasn't just there that day. [00:07:18] Speaker 05: I understand his alibi to be that he went there intending to break in, then he left and the others must have come back. [00:07:24] Speaker 05: He wasn't just there, he was in the closet. [00:07:26] Speaker 05: Or at least there's very strong evidence that he was. [00:07:29] Speaker 05: So how does it help your client if someone else was there too? [00:07:33] Speaker 05: Well, that didn't- Maybe somebody else did the stabbing. [00:08:10] Speaker 03: Do you have the ER site? [00:08:14] Speaker 03: Um, I have a few. [00:08:15] Speaker 03: It's one of these. [00:08:17] Speaker 03: That's fine. [00:08:20] Speaker 03: You can do it. [00:08:21] Speaker 03: Um, 8ER 1564 to 65. [00:08:23] Speaker 03: 1564 to 65. [00:08:26] Speaker ?: Okay. [00:08:27] Speaker 03: And then 9ER 1630 to 31 and 34 to 35. [00:08:29] Speaker 03: It's in one of those. [00:08:30] Speaker 03: I believe that's what they're talking about there. [00:08:33] Speaker 03: Okay. [00:08:34] Speaker 03: Um, but I think that's why this is prejudicial is because he has had to explain that somebody else was there. [00:08:51] Speaker 03: is the alternate suspect, right? [00:08:53] Speaker 03: As this case talked, as this court has talked about in Gable, one Barry and Bradford, right? [00:08:58] Speaker 03: If Casillas didn't do it, who else did, right? [00:09:01] Speaker 03: That's the prejudice, is when the jury doesn't hear that, who else? [00:09:04] Speaker 02: But the problem is that we don't have anything that links anybody else to the scene other than unknown fingerprints, and who knows where those could have come from. [00:09:14] Speaker 03: Well, I mean, I think, again, the corroboration of Miller's letter [00:09:18] Speaker 02: Raymond Perez's condor's not worth very much if the witness can't authenticate it and basically explains the content by saying, look, I would tell police anything to get out of the jams that I was in. [00:09:30] Speaker 02: I was making this stuff up. [00:09:32] Speaker 03: Well, let me take a step back and then address some of what I think the other corroboration is, if that's OK. [00:09:37] Speaker 03: Sure. [00:09:37] Speaker 03: I think there's a subsequent recorded conversation with Russell Scott, who is Raymond Perez's lookout, right? [00:09:49] Speaker 03: 2015, 2016, something like that. [00:09:53] Speaker 03: But, you know, Miller detailed that Scott was the lookout, and then when we have this recorded wire conversation with Scott, Scott just so happens to know about this murder, right? [00:10:01] Speaker 03: Again, he knows none of the public details. [00:10:04] Speaker 03: Perez himself is picked up for a minor marijuana charge and escapes because he's paranoid about being questioned for the murder, right? [00:10:11] Speaker 05: His co-arrest- Well, he escapes, but I don't know about the- because he was paranoid about [00:10:17] Speaker 03: He does actually explain that's why he did it in the second interview after he's re-arrested. [00:10:21] Speaker 03: And Volpe points this out, is this one escape is extremely rare to escape through the ceiling of a police department. [00:10:30] Speaker 03: I've never seen it either, you're right. [00:10:33] Speaker 03: But it doesn't make sense if it was just that marijuana charge, right? [00:10:38] Speaker 03: People don't do it for that reason. [00:10:39] Speaker 05: And then when he's- What he said was that he thought they were gonna try to pin a member of that gang. [00:10:45] Speaker 03: He thinks they were going to pin it on him. [00:10:47] Speaker 03: He also mentions the crazy white boy gang. [00:10:50] Speaker 03: But then when he was arrested the first time, he has a knife that says CWB standing for the crazy white boys. [00:10:55] Speaker 03: So he clearly knows about this murder. [00:10:58] Speaker 03: One witness saw two men the days of the murder, one of them being white, which lines up with the idea that Russell Scott was along with them. [00:11:07] Speaker 03: Perez's girlfriend suggests she has this corroborating information. [00:11:21] Speaker ?: Is there some reason that Volpe did not know about the forensic evidence that was lifted or taken from the crime scene? [00:11:28] Speaker 02: I found that to be very odd in a DA investigator doing a follow-up investigation. [00:11:33] Speaker 03: Oh, I believe that's because he was on the case early on, but a lot of the forensics comes to light as forensic science develops. [00:11:48] Speaker 03: examples from the crime scene, but they did not know that they were linked later to Casillas. [00:11:53] Speaker 03: Well, I'm sure he subsequently did once he was put on the stand and saw that somebody else was, but he didn't know at the time of the investigation. [00:12:03] Speaker 03: But I do think that should give the court a little pause, is that a DA investigator believing somebody else committed the murder is a very unusual set of circumstances. [00:12:10] Speaker 03: I'm sorry, I see I'm over time here. [00:12:21] Speaker 04: Good morning, Your Honors. [00:12:23] Speaker 04: May it please the Court Deputy Attorney General Louis Carlin for responding. [00:12:27] Speaker 04: I just want to pick up on a few things that were just said. [00:12:33] Speaker 04: Volpe's opinion as to who committed the crime. [00:12:39] Speaker 04: At the time, he made that statement, and this was adduced in a pretrial hearing before this court. [00:12:47] Speaker 04: Volpe did not know of the DNA evidence. [00:12:50] Speaker 04: He did not know of the palm print. [00:12:52] Speaker 02: But counsel says that was because it was years later that the match occurred as the technology proved. [00:12:58] Speaker 04: And that's exactly right. [00:12:59] Speaker 04: But when Volpe is asked, did you believe that Perez committed the crime, he didn't know that stuff. [00:13:06] Speaker 04: So his opinion might well have changed if he [00:13:13] Speaker 04: clear that there are no statements by Mr. Scott. [00:13:20] Speaker 04: Every single statement comes from Miller. [00:13:24] Speaker 04: When Miller was wired to get the conversation with Scott, Scott wouldn't talk to him, so Miller had to call him. [00:13:32] Speaker 04: All the police got was Miller's [00:13:36] Speaker 04: as to every Scott statement made by Scott, it was through Miller. [00:13:41] Speaker 04: So that's why the focus had to be on Miller's reliability. [00:13:46] Speaker 04: And as far as non-public facts, it's important to point out that there are very few, I mean, Court mentioned jewelry. [00:13:54] Speaker 04: Well, true, earrings were taken, among other things, but the statement was jewelry. [00:14:02] Speaker 04: It wasn't even earrings. [00:14:08] Speaker 05: jewelry store and it's just jewelry so okay so in the three-page statement the statement is false he says the knife was thrown in the ocean [00:14:45] Speaker 05: and I think that's wrong. [00:14:47] Speaker 04: It's not corroborative, right? [00:14:49] Speaker 04: It's not corroborative because it conflicts with what we actually know. [00:14:52] Speaker 05: But what if there were two assailants and two knives? [00:14:57] Speaker 04: There's no evidence of a second knife. [00:15:00] Speaker 05: That's his theory. [00:15:01] Speaker 05: His theory is that somebody else was there and that there were two assailants. [00:15:04] Speaker 04: Right. [00:15:05] Speaker 04: So if we think about this in terms of Brecht, you know, say this came in. [00:15:14] Speaker 05: But isn't that because of the faecal matter in the closet? [00:15:17] Speaker 05: I mean, the rest of it seems to me to be, I understand. [00:15:20] Speaker 05: It seems like he's got an argument that I can connect the dots to, except for that. [00:15:27] Speaker 04: So it would have to be that Mr. Casillas broke into the window, left his palm print, deposited the DNA. [00:15:42] Speaker 05: No, I'm saying but for that. [00:15:50] Speaker 05: is devastating. [00:15:52] Speaker 05: But for that, it seems to me that his argument would hold together that there were two people in the house. [00:16:01] Speaker 04: There's no affirmative evidence of two people. [00:16:04] Speaker 04: It's possible. [00:16:05] Speaker 05: Well, there's unidentified fingerprints. [00:16:07] Speaker 05: He's got that. [00:16:08] Speaker 04: Right. [00:16:09] Speaker 04: But it's a residence. [00:16:10] Speaker 04: But yes. [00:16:16] Speaker 04: that it's very small. [00:16:18] Speaker 04: It's like an hour and a half to get back around 10.30. [00:16:21] Speaker 04: We know when the mom and victim left and came back yet. [00:16:24] Speaker 04: So when they left early in the morning, they arrived back around 10.30, there was nothing disturbed when they first came back. [00:16:32] Speaker 04: So when they come back the second time, so all you've got is from, I think, 10.30 to maybe 12.30 at the most. [00:16:47] Speaker 04: because of the sunlight and the fecal matter was still warm. [00:16:53] Speaker 04: So the idea would be that he left and then someone else climbed through the window. [00:17:00] Speaker 05: It's a very tight time frame. [00:17:02] Speaker 05: We have a pretty detailed timeline. [00:17:05] Speaker 05: Can I shift gears and ask you to speak to Andrew, the recent Supreme Court case, and the state's position on whether or not there's clearly established law that would support this claim? [00:17:16] Speaker 04: There is clearly established law. [00:17:20] Speaker 05: you have a long line of clearly established Supreme Court precedent, which is that... [00:17:42] Speaker 04: And that the key point is that the through line with all those cases is that the defense evidence must be reliable, must be trustworthy. [00:17:53] Speaker 04: And then you have an arbitrary or mechanistic application of the law to exclude trustworthy evidence. [00:17:59] Speaker 05: Evidence that leaves us with real doubt about the fairness of the trial. [00:18:15] Speaker 02: as constitutional rights. [00:18:17] Speaker 04: That's correct, Your Honor. [00:18:18] Speaker 04: That's open. [00:18:19] Speaker 04: The nice thing about this case means you don't have to reach it because the application itself was so reasonable. [00:18:28] Speaker 04: You had about 58 pages of pretrial testimony back and forth, cross, reach, [00:18:41] Speaker 04: find out is there any basis that I can believe. [00:18:45] Speaker 04: So past recollection recorded is the hearsay exception. [00:18:52] Speaker 04: One of the necessary components, one of the four necessary components is that the maker of the statement will testify that the statement was true when made. [00:19:04] Speaker 04: And Mr. Miller [00:19:26] Speaker 01: how it's tough to trust criminals because they're criminals and they're not honest. [00:19:31] Speaker 01: And I look at Miller and Miller's busy saying, now, I don't remember anything about that. [00:19:36] Speaker 01: I was willing to say anything. [00:19:38] Speaker 01: But why do we think that's trustworthy? [00:19:53] Speaker 04: understand okay he says I don't remember saying any of it so you can't it can't come in as a prior in order to impeach a prior statement that he made so because he doesn't remember it at all so the only Avenue really is the past statement recorded so why is that I'm thinking about our [00:20:28] Speaker 01: anything he says is trustworthy, but it is troubling that his current denials [00:21:01] Speaker 01: letter based on what he's telling us now, when I've got no confidence that what he's telling us now is truthful. [00:21:08] Speaker 04: Well, two things. [00:21:09] Speaker 04: One is that there are nonpublic facts that are contradicted by all the evidence. [00:21:17] Speaker 04: But the other thing is, I mean, the court is left with statements like where Mr. Miller says he was taking Mr. Volpe for a ride regarding this case. [00:21:31] Speaker 04: and taking, do you understand what that means, that phrase? [00:21:35] Speaker 04: He says, yes, I do. [00:21:36] Speaker 04: And I probably lied to him, referring to Volpe, when he was asked about the statements. [00:21:44] Speaker 04: Asked if he really heard the confessional statements by Perez or Scott, Miller said, I might have, but I don't exactly know what was true and what wasn't. [00:21:52] Speaker 04: I probably ran with whatever I heard and twisted it for my own benefit. [00:22:00] Speaker 04: Whereas said he told Jake Bush, he said, I don't remember telling him that. [00:22:06] Speaker 04: So the Superior Court is left in a situation where there's nothing for him to hold on to in order to make a finding, a threshold finding that this is something the jury can rely on. [00:22:22] Speaker 02: And your point is that for 58 pages, [00:22:40] Speaker 04: The last thing I'm going to do is take a credibility determination away from the jury. [00:22:45] Speaker 04: But this is basic, basic responsibility of a trial. [00:23:07] Speaker 05: Because I think it answered my question about clearly established law one way, and then I'm not sure that I followed your response to Judge Talman's question. [00:23:14] Speaker 05: So what is it you think that remains unknown? [00:23:33] Speaker 04: of a rule that fits, that is not arbitrary, a rule like this. [00:23:39] Speaker 04: Can the application by the trial judge be mechanistic, arbitrary, such as to violate the right to present a claim, a complete defense? [00:23:50] Speaker 02: So by that, do you mean it's not a per se reversal rule just because the defense says my complete defense was cut off, therefore it must yield to my [00:24:05] Speaker 02: see fit, the court still has an obligation to determine the trustworthiness and reliability of the evidence, which is what happened here. [00:24:14] Speaker 02: Which is what happened here, so yes. [00:24:16] Speaker 02: Before we declared there was a due process violation. [00:24:19] Speaker 02: That's correct. [00:24:20] Speaker 02: And excluding the evidence. [00:24:21] Speaker 05: Yes. [00:24:22] Speaker 05: Okay. [00:24:23] Speaker 05: But your contention is not that it's, I don't think you're saying that it's an open question, that if we have a chamber scenario [00:24:32] Speaker 05: correctly, or at least within the strike zone for purposes of state law, that that could nevertheless violate due process if otherwise reliable evidence is excluded so that we have a real doubt about the fundamental fairness of the trial. [00:24:48] Speaker 05: That's what Chambers was. [00:24:49] Speaker 05: And it seems to me I've tried to be really transparent about this. [00:24:51] Speaker 05: I think the difference between this case and Chambers is not the rule of evidence. [00:24:55] Speaker 05: It's that there's real reason to think that this excluded evidence wasn't reliable. [00:25:02] Speaker 04: Well, yes, that's what happened here, but the distinction, as I understood, at least my understanding of what you were getting at, is that the open question is, on the one hand, Chambers had a rule of evidence that on its own is indefensible. [00:25:23] Speaker 05: It's based on a- Was it your position that we would have to have that as a prerequisite? [00:25:28] Speaker 05: Correct. [00:25:29] Speaker 05: All right, thank you. [00:25:30] Speaker 05: You're now your way over time. [00:25:31] Speaker 05: But thank you for your patience with my questions. [00:25:38] Speaker 03: Thank you, Your Honors. [00:25:40] Speaker 03: Judge Clifton, to a point you made, and to paraphrase one of your opinions, everything has been said, just not everyone has said it, right? [00:25:48] Speaker 03: This is- Remember that clearly. [00:25:50] Speaker 03: I used the quote, yes. [00:25:53] Speaker 03: I think this is pretty well tried. [00:25:58] Speaker 03: that just leaves this one defendant in view, and the only defense is that somebody else did it, that's when this right's violated, that's when it's prejudicial. [00:26:06] Speaker 05: Well, it could be. [00:26:07] Speaker 05: So can we get back to this? [00:26:08] Speaker 05: I understand absolutely why you want to place another person in the house, but as I said, my problem with this case, if I want to give you a chance to respond to this, it's the timeline. [00:26:18] Speaker 05: Your client's alibi, as I understand it, is that he [00:26:27] Speaker 05: He says he was there that day, and the question is sort of when. [00:26:30] Speaker 05: And then there's this DNA evidence from the closet. [00:26:32] Speaker 05: And so even if someone else, and we know, I think we know, we have evidence from the mother that when this child was stabbed, she came in, she said he's just run out of the house. [00:26:44] Speaker 05: The strong implication is that the murderer was in the closet. [00:26:47] Speaker 03: Do you agree with that? [00:26:48] Speaker 03: That the murderer had jumped out of the closet? [00:26:51] Speaker 03: Yeah, I think that's what- Yeah, right. [00:26:58] Speaker 05: that day whether it seems like it would have to have even been the you know the first trip if there had been an aborted burglary because as to get into this graphic detail because the fecal matter was still warm so it becomes just really almost vanishingly remote and I want to make sure you tell me what I'm missing in that [00:27:20] Speaker 03: the the what happened from our perspective is that they go there they look around for houses to burglarize they see this house they both get in then Raymond Perez yeah then what happens is there's dead bolts that are locked from both sides so they can't leave through the front door so my client [00:27:44] Speaker ?: to jump through the window. [00:27:45] Speaker 03: So he wants to leave. [00:27:46] Speaker 03: They do, they do leave. [00:27:48] Speaker 03: He drops off Raymond Perez and then Russell Scott was there with him. [00:27:52] Speaker 05: So I don't think it's... So in your client's story, I don't mean that contortively, his version of events is that they must have gone back and committed the crime. [00:28:02] Speaker 03: Yeah. [00:28:02] Speaker 03: The murder. [00:28:04] Speaker 03: Well, yeah, Perez. [00:28:05] Speaker 03: I mean, and you know, again, we have Russell Scott acting as a lookout and this man just so happens to know about it. [00:28:11] Speaker 05: How long did it take for the police to get [00:28:17] Speaker 03: minutes maybe. [00:28:18] Speaker 03: It was quick. [00:28:20] Speaker 03: It was quick. [00:28:21] Speaker 03: It was down the street from the courthouse. [00:28:23] Speaker 03: He was on a motorcycle. [00:28:24] Speaker 03: He got there pretty quick. [00:28:26] Speaker 03: I'm just submitting that I think this is actually a two-hour window. [00:28:31] Speaker 03: I don't think it's as tight of a window as the state wants to make it here. [00:28:40] Speaker 03: No, because that would be that would be a sufficiency type of claim the problem here Certainly we don't have that what I'm saying is I think that's sort of a similar mistake that the South Carolina Supreme Court [00:29:13] Speaker 05: still warm, and the police got there right away. [00:29:15] Speaker 05: If your client's alibi is the one that you want us to entertain as third-party evidence that was prejudicial to him to have, it seems to me very unlikely, because his version of events would have him leaving certainly an hour earlier. [00:29:33] Speaker 05: Not an hour, I think. [00:29:34] Speaker 05: Something like that, yes. [00:29:35] Speaker 05: As long as I'm not misunderstanding [00:29:40] Speaker 03: The problem is that, I'm sorry for the graphicness too, it sort of is what it is. [00:29:44] Speaker 03: If the problem is the warmth there, we don't really have a lot of detailed description as to like how warm or things like that. [00:29:51] Speaker 03: You know, was it? [00:29:52] Speaker 03: How warm was the house? [00:29:53] Speaker 03: Was it a hot day? [00:29:54] Speaker 03: Well, it was in the summer. [00:29:57] Speaker 03: I mean, it was late June. [00:29:59] Speaker 03: But this is the problem to me, is that we can sort of poke at the details, right? [00:30:05] Speaker 03: But at the end of the day, we're talking about whether the jury should have even heard this at all. [00:30:15] Speaker 02: did they know that? [00:30:16] Speaker 03: Well the two girls who were the two girls who yeah so the only one who thinks she can make an identification is Semchenko and her detail I mean I detail this in the uncertified claim there's a lot I think there is that her unreliability [00:30:47] Speaker 03: as the why or identification.