[00:00:00] Speaker 02:
The next case on calendar for arguing is in grassy versus core.

[00:00:09] Speaker 02:
Good morning, Council.

[00:00:11] Speaker 02:
Good morning.

[00:00:13] Speaker 02:
Can you all hear us?

[00:00:14] Speaker 03:
Yes.

[00:00:16] Speaker 03:
All right, Council for appellate.

[00:00:17] Speaker 03:
Please proceed.

[00:00:19] Speaker 03:
Thank you.

[00:00:19] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:22] Speaker 03:
My name is Lara Gressley, and I represent the Petitioner Appellant, Brittany Ann Ingrossi.

[00:00:27] Speaker 03:
I'd like to reserve five minutes for rebuttal with the Court's permission, and I will keep track of my time.

[00:00:33] Speaker 03:
All right.

[00:00:34] Speaker 03:
This morning, Your Honor, I'd like to focus on the issues surrounding the ineffective assistance of counsel claims, specifically with regard to the failure of trial counsel to challenge the intoxication evidence and the resulting prejudice.

[00:00:49] Speaker 03:
Now, Ms.

[00:00:49] Speaker 03:
Ngrosi was denied her right to effective assistance of counsel long before the trial began.

[00:00:55] Speaker 03:
The first failure of trial counsel was to fail to file a motion to suppress evidence.

[00:01:02] Speaker 03:
Now, this was a warrantless blood search, and we do have an under oath statement from the petitioner in a declaration stating that she did not freely and voluntarily consent.

[00:01:13] Speaker 03:
The district court found that there was no contemporaneous evidence, they called it, of no consent.

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But I submit to the court that mere acquiescence to the law enforcement's authority to take the blood sample and merely submitting it is not valid consent.

[00:01:29] Speaker 03:
That's not sufficient within the- Let me ask you this.

[00:01:33] Speaker 00:
As I'm sure you're aware, there's plenty of evidence against your client unrelated to intoxication.

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And it's certainly not implausible that a caregiver could abuse a child while sober.

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Under the circumstances, why would she be prejudiced by the admission of the intoxication evidence?

[00:01:53] Speaker 03:
There are several reasons, not the least of which is that there were two witnesses that testified to Missing Rossi's good character, testified about how her entire adult life she had been watching children, caring for the children.

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She was the go-to babysitter, peaceful character, loving, caring with children.

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who by all accounts adored Aiden, who was actually her longtime fiance's cousin's child.

[00:02:19] Speaker 00:
That's all well and good.

[00:02:22] Speaker 00:
But as you know, there's lots and lots of evidence, the blood, the carpeting, all kinds of other things.

[00:02:29] Speaker 00:
That gets back to my other point.

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There's lots and lots and lots of evidence that point to activity by your client that could be culpable

[00:02:38] Speaker 03:
and the intoxication seems to be just kind of really a minor point you can abuse or whether or not you are intoxicated why is intoxication a big deal here if the court would bear with me with regard to the character witnesses i'll i'll explain that briefly why that matters because in california the jury instruction says the character evidence

[00:02:57] Speaker 03:
good character evidence can by itself establish a reasonable doubt.

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Now the prosecution asked the one question, have you ever seen her intoxicated?

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The answer was no.

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They'd never seen her intoxicated, especially while caring for children, so it obliterated her character evidence, first of all.

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Second of all, the prosecution argued

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They came up with a scenario that she was essentially hitting the baby's head on the door, hitting the baby's head on the crib, recklessly pulling the child up, fumbling about, dropping the child as though she were drunk.

[00:03:32] Speaker 03:
This was their argument in closing, Your Honors.

[00:03:35] Speaker 03:
And also, in closing, the prosecution did say she was drunk while she was caring for Aiden.

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They didn't know when she drank because there was no evidence of any alcohol consumption whatsoever, which was never investigated because it doesn't reconcile with the blood alcohol results at all.

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There was no odor, no symptomology, nothing.

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And while I understand the court's point, I'm trying to share with the court my perspective on this, which is

[00:04:00] Speaker 03:
there was no motive there was no motive she had been perfectly fine with this child for six weeks watching him every day all day long no incidences so they had to explain how is this possible that this person who had never done anything wrong a cpa 30 year old cpa student would have done this that's how they explained it they that's why i i guess angry drunk that's what they said i i guess my concern is this the um

[00:04:28] Speaker 00:
You're phrasing this as an IAC issue.

[00:04:31] Speaker 03:
Yes, Your Honor.

[00:04:32] Speaker 00:
And the reality is with the massive amount of evidence against your client, to me, I just don't get it.

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I don't think, even if you're 100% correct, even if we say, well, they handled that wrong, I don't see where that changes the outcome in light of

[00:04:52] Speaker 00:
the massive amount of other information.

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Where's the prejudice on this?

[00:04:58] Speaker 03:
There were so many instances of ineffective assistance of counsel.

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It's not just the intoxication evidence, but it was egregious because without it, you had a completely sober person with no reason, no motive

[00:05:13] Speaker 03:
Nothing to murder an infant.

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This was a family member's infant essentially for her There was just absolutely no explanation for how they had to explain it with a personality change That's why they brought out text messages between her and her fiance about how when she drank it changed her personality She became angry they had to do that.

[00:05:33] Speaker 03:
So challenging it was critical, but there were other

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instances of ineffective sense of counsel with respect to presenting the defense, which was that this French bulldog had in fact inflicted these injuries.

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And there was plenty of evidence about that, but it was so ineffectively done.

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In fact, in one instance, I'll tell you right here that the dog expert, Jill Kessler Miller, had prepared

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videos that had detailed examples of exactly how the dentition matched the bruising, how everything matched up, but she was not able to present them because trial counsel failed to provide transcripts, and that's a California rule of courts, so the court excluded the videos.

[00:06:16] Speaker 03:
So then she began fumbling through this unprepared testimony because trial counsel didn't meet with her ahead of time, and we have that declaration in the record to show that.

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We had a 39-year experienced pathologist testify, 100% believes that Ms.

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Ngrosi is innocent, that the dog inflicted these injuries, but yet wasn't given the skull x-rays before trial.

[00:06:36] Speaker 03:
Now, the district court says that he was, but that is clear in the record that he was not, and he did sign a declaration as well saying he never got the skull x-rays.

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Compare that with the coroner who had under two years experience, and

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he testified that the other error I wanted to point out that the district court made was that the district court concluded that he had seen three or four infants who had suffered dog attacks.

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That's not what the testimony revealed, absolutely not, and that was not brought out by trial counsel either.

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So the only reason that the jury would have believed

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the under two years experienced coroner versus the 39-year experienced Dr. Pietruska, the pathologist, is because he didn't have the right information.

[00:07:25] Speaker 03:
So it was definitely a confluence of events, Your Honor.

[00:07:28] Speaker 03:
It was not just the ineffectiveness with respect to the intoxication evidence here.

[00:07:32] Speaker 01:
Well, but doesn't the point you are just making now

[00:07:36] Speaker 01:
reinforce Judge Smith's point about how irrelevant the alleged intoxication was.

[00:07:44] Speaker 01:
The issue, as was put to the jury, was it's either the defendant or the dog that did this and whether or not

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she was intoxicated or not when she did it, was not anything more than a side issue.

[00:08:02] Speaker 01:
The critical issue was it was either her or the dog and the jury found it was her.

[00:08:09] Speaker 03:
Your Honor, I respectfully disagree with that and I ask the court to consider whether if you have a person who's on trial for child murder and there's evidence that they are highly intoxicated at the time they're caring for this tiny infant during the day,

[00:08:24] Speaker 03:
at the person's apartment, whether that is incriminating, it absolutely is.

[00:08:29] Speaker 03:
And we're talking about, there was one number of .22 blood alcohol level when the expert did retrograde calculations, which were not reliable, as is stated in my book.

[00:08:40] Speaker 01:
Well, if the dog did not do it, then the only other possibility would be that your client did, yes?

[00:08:54] Speaker 03:
Your honor, yes.

[00:08:55] Speaker 03:
But the problem with that is that it caused them to believe that she did it and not believe the dog because of, again, the flailing presentation.

[00:09:06] Speaker 03:
an inadequate presentation of that defense, but also because she was, well, her personality changes.

[00:09:13] Speaker 03:
They presented evidence that she was drunk, she was reckless.

[00:09:16] Speaker 03:
They actually took a rag doll into the courtroom and were swinging it around as though it was somebody just fumbling and, you know, going about and hitting the door and the cabinet as though she's highly intoxicated.

[00:09:29] Speaker 03:
The whole theory was based on that.

[00:09:34] Speaker 00:
Back to what my colleague just mentioned.

[00:09:36] Speaker 00:
I mean, my understanding is, I think it was the coroner, I may be wrong on who said it, but the dog's mouth was not big enough to get around the head of the baby.

[00:09:45] Speaker 00:
And that was basically the fatal impact was on the head of the baby.

[00:09:51] Speaker 00:
You had the issues of the broken arm for some time back.

[00:09:55] Speaker 00:
And again, the dog could not have done it.

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And as my colleague put it straightforwardly, the issue is, did the dog do it or the defendant?

[00:10:02] Speaker 00:
It seems to me that, you know, no trial is perfect.

[00:10:06] Speaker 00:
No lawyer is perfect.

[00:10:07] Speaker 00:
But when you look at the evidence, the overwhelming evidence involved here, the trial lawyer had some basically some strategy to decide which is the best way to go.

[00:10:17] Speaker 00:
Was it perfect?

[00:10:18] Speaker 00:
No, but that's not what Strickland requires.

[00:10:21] Speaker 00:
And more importantly, even if the prong one is met, I don't see where you satisfy prong two.

[00:10:27] Speaker 00:
What's the prejudice?

[00:10:28] Speaker 03:
Yes, Your Honor.

[00:10:29] Speaker 03:
I'd briefly like to speak to the dog.

[00:10:32] Speaker 03:
There was no allegation that this was a dog attack.

[00:10:35] Speaker 03:
It was a dog encounter.

[00:10:36] Speaker 03:
Now, Jill Kessler Miller, the expert, testified that the dog's jaw came in like a battering hand.

[00:10:41] Speaker 03:
It wasn't opening the mouth like to bite.

[00:10:45] Speaker 03:
It was coming in and hitting the skull and then grabbing the arm and shaking like a toy.

[00:10:51] Speaker 03:
So this was not an aggressive attack.

[00:10:53] Speaker 03:
It was using this tiny little baby as a play toy.

[00:10:56] Speaker 03:
That was

[00:10:57] Speaker 03:
the explanation but it was not done right and that is the point about prejudice is that it had to be both she had to present that evidence effectively but she also had to attack the other evidence about the intoxication because that is what gave the prosecution their theory in the case

[00:11:17] Speaker 03:
Absolutely.

[00:11:18] Speaker 03:
100% I believe that if she had done both of those things, Ms.

[00:11:22] Speaker 03:
Ingrasi would not have been convicted.

[00:11:24] Speaker 03:
Ms.

[00:11:24] Speaker 03:
Ingrasi is innocent, as the dog expert testified, as Dr. Pietruska testified.

[00:11:30] Speaker 03:
She's innocent.

[00:11:31] Speaker 03:
And that is, the prejudice is because this intoxication evidence is what filled the motive gap for the prosecution and caused the jury to convict her.

[00:11:42] Speaker 00:
And yet, as Judge Rakoff pointed out, and I think you agreed,

[00:11:47] Speaker 00:
The issue in this case is did the dog do it or did your client do it?

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The jury believed that your client did it.

[00:11:55] Speaker 00:
Looked at the evidence, you said the evidence was not presented in a proper way, but the reality is it was presented.

[00:12:01] Speaker 00:
Each of the points you're talking about in one way or another got in and the jury looked at the evidence and decided that your client did it and not the dog because it found it improbable.

[00:12:12] Speaker 00:
So how are we supposed to deal with that in terms of prejudice?

[00:12:15] Speaker 03:
In terms of prejudice, Your Honor, what Miss Kessler Miller states in her declaration about how she was not able to present

[00:12:24] Speaker 03:
all of the evidence in the case, which was that the dentition and the paws matched up perfectly to the bruising, and that the intoxication evidence just swayed the jury that, okay, well, I guess she can do something like this, because these were deplorable acts that you couldn't believe that a person like Ms.

[00:12:41] Speaker 03:
Ingrosso would ever do, and that's the point, is that it was not presented in a way that was effective.

[00:12:47] Speaker 03:
There were so many failings as detailed in my brief, Your Honor, and I'd ask that the court reverse the district court's order.

[00:12:54] Speaker 03:
and grant the relief.

[00:12:56] Speaker 02:
Thank you, Council.

[00:12:58] Speaker 02:
We'll hear from the government.

[00:13:04] Speaker 04:
Good morning, Your Honors.

[00:13:05] Speaker 04:
Deputy Attorney General Taylor Nguyen appearing on behalf of Respondent.

[00:13:10] Speaker 04:
We ask that the District Court denial of habeas relief be affirmed.

[00:13:15] Speaker 04:
on all claims because petitioner has failed to demonstrate any entitlement to relief, and specifically focusing on the blood alcohol evidence.

[00:13:26] Speaker 04:
As your honors have stated, this case is viewed in the context of who did it.

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And the alcohol evidence, as the district court observed, was a very minor part of this case.

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We can even skip right to prejudice, Your Honor, even if assuming that we have, council was successful in getting this, discrediting the alcohol evidence.

[00:13:54] Speaker 04:
And we even take that out.

[00:13:56] Speaker 04:
What is the jury left with?

[00:13:57] Speaker 04:
The jury is left with the physical evidence that shows a sober caretaker

[00:14:06] Speaker 04:
brutally abusing, attacking a five-month-old baby, causing the baby to have skull fracture, bleeding of the brain, his lips were pulled from his gums, various bruising and lacerations.

[00:14:25] Speaker 04:
There was also evidence of smothering that she smothered the baby.

[00:14:29] Speaker 04:
This is strong, overwhelming evidence of her guilt.

[00:14:33] Speaker 04:
And in addition to that, the jury is left with evidence that she, instead of seeking help for this baby who's injured and unconscious, she is on the phone with her fiance.

[00:14:48] Speaker 04:
She is cleaning up the crime scene and hiding evidence and destroying evidence by erasing her phone history.

[00:14:57] Speaker 04:
This is what the jury has in front of it.

[00:15:00] Speaker 01:
What about the the other point made by Helen Council a minute ago that if council had done a much better job of presenting their expert who said the dog could have done it or even that the dog did do it

[00:15:29] Speaker 01:
that that would have created a reasonable doubt.

[00:15:37] Speaker 04:
The expert that the defense presented did do a good job of presenting evidence that the dog did it.

[00:15:45] Speaker 04:
The dog expert talked about paw print that can be found on the baby, talked about teeth indentations that could be found on the baby.

[00:15:59] Speaker 04:
And the pathologist also talked about skull injuries after viewing the x-rays.

[00:16:09] Speaker 04:
And I would submit, Your Honor, that the pathologist, the defense pathologist on his direct or in his cross-examination

[00:16:19] Speaker 04:
admitted at trial that he did see the x-rays before trial, and that's counter to his declaration that he submitted in this case.

[00:16:28] Speaker 04:
But the defense put on a very, very good case indicating that Dogg did this, and also character evidence, and essentially

[00:16:42] Speaker 04:
Petitioner is now taking the role of the jury and arguing that, well, counsel did all these things wrong and all these things should be rejected.

[00:16:54] Speaker 04:
But the jury had before it the prosecution's evidence, physical evidence, evidence of petitioners, character evidence, evidence of

[00:17:04] Speaker 04:
petitioners' consciousness of guilt and evidence that the dog did this crime.

[00:17:10] Speaker 04:
And it is the role of the jury to assess the evidence, assess the credibility, and make the decision and weigh the evidence and make the decision as to guilt.

[00:17:20] Speaker 04:
And that's what the jury did.

[00:17:22] Speaker 04:
It rejected the evidence that the dog did it.

[00:17:25] Speaker 04:
It rejected the character evidence.

[00:17:27] Speaker 04:
that she was a loving caretaker based on the evidence that the prosecution here produced, which shows a brutal attack on a baby.

[00:17:36] Speaker 04:
The evidence of her guilt is just overwhelming.

[00:17:45] Speaker 04:
I'll just note a few things.

[00:17:48] Speaker 04:
She's washing clothes to get the blood off.

[00:17:52] Speaker 04:
She's hiding evidence deep in the trash.

[00:17:55] Speaker 04:
She's flipping over a rug that contains blood.

[00:18:00] Speaker 04:
She washes the baby of all blood, undresses him, and so there was no blood found on him, but his blood was found on her clothing.

[00:18:10] Speaker 04:
And if this really was a dog attack, there was no reason for her to do any of that.

[00:18:15] Speaker 04:
She should have just called 911.

[00:18:17] Speaker 04:
If her phone didn't work, she could have left the apartment and seek help in a neighbor.

[00:18:22] Speaker 04:
They lived in an apartment.

[00:18:23] Speaker 04:
So therefore, it is

[00:18:26] Speaker 04:
It is the petitioner's burden to meet Strickland, having to show both prongs.

[00:18:32] Speaker 04:
And even if you jump straight to the prejudice prong here, petitioner has failed to show prejudice and therefore the claim must fail.

[00:18:43] Speaker 04:
Unless the court has any further questions for me, I will submit.

[00:18:49] Speaker 03:
It appears not counsel, rebuttal.

[00:18:53] Speaker 03:
Thank you, Your Honors.

[00:18:54] Speaker 03:
Just a few brief points, Your Honors.

[00:18:56] Speaker 03:
With respect to the x-rays and Dr. Pietruska, his testimony is found in 8 ER 1611.

[00:19:03] Speaker 03:
He says, I never received them, talking about the x-rays.

[00:19:07] Speaker 03:
So there was some confusion because his reports said that he did, and initially in his testimony he said that he did, but he clarified that later.

[00:19:15] Speaker 03:
It's in the record for the court to see.

[00:19:18] Speaker 03:
Also your honor with respect to her frantic behavior after these injuries now she told police that she left the room left the baby on a play mat came back and the dog was next to the baby.

[00:19:32] Speaker 03:
Now obviously the conduct and frantically trying to find out what's wrong with the baby

[00:19:37] Speaker 03:
She said the baby's face was red and she undressed the baby and washed the baby and did all that.

[00:19:44] Speaker 03:
That is true.

[00:19:45] Speaker 03:
She's frantically trying to figure out what happened and also probably felt quite negligent for leaving the child with the dog.

[00:19:54] Speaker 03:
This was actually the first time the dog had been in the apartment with her when she was babysitting, which she had done for six weeks without the dog there.

[00:20:01] Speaker 03:
That was testimony from the father.

[00:20:04] Speaker 03:
So yes, there was some frantic behavior, the phone issue.

[00:20:09] Speaker 03:
Joseph Carlos called his cousin, the father, and said, you know, call the mother, come home quick.

[00:20:16] Speaker 03:
Her phone's acting up.

[00:20:17] Speaker 03:
I just called her.

[00:20:18] Speaker 03:
She was able to get my call.

[00:20:21] Speaker 03:
So this happened actually very close in time to when mother arrived.

[00:20:24] Speaker 03:
She's at the top of the stairs screaming for her to come upstairs.

[00:20:28] Speaker 03:
She's acting frantic to get care for the child.

[00:20:31] Speaker 03:
For whatever reason, her phone didn't work.

[00:20:34] Speaker 03:
it was speculated that it was erased, but that actually was not investigated by trial counsel and very well could have been something that happened with the phone because she had to be cracking it.

[00:20:44] Speaker 03:
It was a problem.

[00:20:46] Speaker 03:
There was some evidence to that regard.

[00:20:48] Speaker 03:
But again, the ineffective assistance of counsel claims surrounding the intoxication evidence which gave the prosecution a motive and a theory to say why this person, who by all accounts loved and adored children all her life, did something so deplorable.

[00:21:04] Speaker 03:
And then on top of that, Your Honors, the flailing examination of Jill Kessler Miller, and that is in her declaration, she shuffled her photos out of order.

[00:21:16] Speaker 03:
She couldn't present the videos, so now she had to grant that we try to present it to the jury in a meaningful way.

[00:21:22] Speaker 03:
It just was not done, and all of it could have been done if counsel had been effective.

[00:21:27] Speaker 03:
And I thank you for the Court's time, and I appreciate you listening to me in these arguments.

[00:21:32] Speaker 03:
and I ask again that the court reverse the district court's order in order that petitioner be granted relief as prayed for in the petition.

[00:21:40] Speaker 03:
Thank you so much.

[00:21:41] Speaker 02:
Thank you, counsel.

[00:21:42] Speaker 02:
Thank you to both counsel for your helpful arguments.

[00:21:45] Speaker 02:
The case just argued is submitted for decision by the court.