[00:00:05] Speaker 03:
May it please the court, Deputy Attorney General Gabriel Bradley for the state.

[00:00:09] Speaker 03:
I'd like to reserve seven minutes for rebuttal.

[00:00:12] Speaker 05:
All right.

[00:00:13] Speaker 05:
I'll try to help you out, but keep your eye on the clock as well, please.

[00:00:16] Speaker 03:
Of course, Your Honor.

[00:00:18] Speaker 03:
The district court made numerous errors requiring reversal.

[00:00:21] Speaker 03:
The most serious of these are assuming that Scott's confession was somehow inadmissible, failing to properly analyze prejudice for each of trial counsel's supposed deficiencies,

[00:00:32] Speaker 03:
and ignoring facts that show how trial counsel's decisions were reasonable under the circumstances.

[00:00:38] Speaker 03:
Starting with the admissibility of the confession, there was no evidence of police coercion during the interrogation.

[00:00:43] Speaker 03:
Scott told his attorney he committed the crimes and that the police reports were accurate.

[00:00:48] Speaker 03:
A competency evaluation conducted shortly after the interrogation revealed no signs of psychosis, PTSD, or any other mental illness.

[00:00:57] Speaker 03:
Indeed, the evaluation found that Scott was exaggerating his symptoms.

[00:01:01] Speaker 03:
And this was confirmed when Scott admitted to his attorney that he had faked mental illness during the interrogation.

[00:01:09] Speaker 02:
Part of it is, what is the standard there?

[00:01:11] Speaker 02:
Because I do think there was evidence on both sides of it.

[00:01:15] Speaker 02:
But the original court found it.

[00:01:20] Speaker 02:
There was no coercion, right?

[00:01:23] Speaker 02:
Yes.

[00:01:24] Speaker 02:
And that went up on direct appeal?

[00:01:26] Speaker 03:
The question about the Miranda,

[00:01:31] Speaker 03:
Yeah.

[00:01:32] Speaker 03:
That was in the second and third state habeas petition.

[00:01:36] Speaker 02:
So it was, it did not go, there was no direct appeal on that issue?

[00:01:39] Speaker 02:
That's correct.

[00:01:40] Speaker 02:
Okay.

[00:01:42] Speaker 02:
And so what is the standard that we're looking at?

[00:01:46] Speaker 02:
I mean, where there's evidence on both sides, what is the district court?

[00:01:49] Speaker 02:
Did he commit a factual error or did he commit a legal error because he misapplied the law?

[00:01:56] Speaker 03:
So the standard is the doubly deferential standard under EDPA.

[00:02:01] Speaker 03:
And so, yes, it is a legal error that the district court committed by failing to give the appropriate deference.

[00:02:07] Speaker 03:
The district court was required to give deference to the reasonable decisions of trial counsel under Strickland, and the district court was required to give deference to the reasonable determination of the California Supreme Court in rejecting this claim on state habeas review under EDPA.

[00:02:24] Speaker 03:
And in this case, the district court has failed to give both levels of that double deference that was due.

[00:02:29] Speaker 01:
How many, I'm sorry, go ahead Judge.

[00:02:32] Speaker 01:
How many, so this is a cumulative error analysis and if we were to, for the sake of argument, conclude that the district court erred in finding error on certain grounds but not others, is there a metric or how many grounds do we need before there's cumulative error that would require affirming and granting the writ?

[00:02:55] Speaker 03:
So it would be the familiar Strickland standard which is a reasonable probability

[00:02:59] Speaker 03:
of a better outcome at trial.

[00:03:01] Speaker 03:
So if there were prejudice sufficient to meet that standard of a reasonable probability of a better outcome for Scott at trial, then that would, under Strickland, justify a grant of relief.

[00:03:12] Speaker 01:
Even with just one ground for relief?

[00:03:15] Speaker 03:
Certainly.

[00:03:16] Speaker 03:
Certainly.

[00:03:16] Speaker 03:
That's the standard is reasonable probability of a better outcome.

[00:03:20] Speaker 03:
If Scott can meet that standard, then Scott would be entitled to relief.

[00:03:23] Speaker 03:
Here, under the facts of this case,

[00:03:26] Speaker 03:
He can't reach that threshold of a reasonable probability of a better outcome.

[00:03:30] Speaker 03:
On any of them?

[00:03:32] Speaker 03:
On any of them.

[00:03:32] Speaker 02:
So here's where I'm confused on the cumulative error.

[00:03:37] Speaker 02:
Because as I understand the cumulative error argument, we could theoretically say there was no error on each of these seven.

[00:03:46] Speaker 02:
How many were there that the district court found?

[00:03:47] Speaker 02:
Eight.

[00:03:48] Speaker 02:
Eight.

[00:03:48] Speaker 02:
So the district court found eight errors.

[00:03:50] Speaker 02:
And he also found, but cumulative error is one of those eight, right?

[00:03:54] Speaker 02:
Cumulative errors is one of those eight.

[00:03:56] Speaker 02:
Okay, so we could say there's no error on any of the seven, but somehow combined almost errors could still meet cumulative error.

[00:04:08] Speaker 02:
Is that what the law is?

[00:04:11] Speaker 02:
It's not, Your Honor.

[00:04:12] Speaker 03:
The way that the... I think it might be in the Ninth Circuit.

[00:04:15] Speaker 03:
Well, so Strickland says that in order for it to be ineffective assistance of counsel, you need to have both prong-satisfied deficiency and prejudice.

[00:04:23] Speaker 03:
If you have

[00:04:25] Speaker 03:
a deficiency that has no prejudice, then it's not a Strickland error.

[00:04:29] Speaker 03:
So when you're looking, even at looking at accumulating prejudice, if you don't have a Strickland problem to begin with, there's nothing to add.

[00:04:37] Speaker 02:
What work is cumulative doing?

[00:04:39] Speaker 02:
That's what I'm confused on, because we have case law that says cumulative error is a ground.

[00:04:45] Speaker 02:
But it's not clear to me what work that's actually doing, because as you pointed out, if we find one of the other seven errors, you could grant the writ anyway.

[00:04:55] Speaker 02:
The only way cumulative error is actually doing any work on its own is if we said there's no other error, but somehow we get cumulative error.

[00:05:01] Speaker 02:
Have we said that before?

[00:05:02] Speaker 02:
There's no actual error, but it's all bad enough that we're going to put it together to accumulate it.

[00:05:09] Speaker 03:
So I think you're raising exactly why there's a circuit split on this issue.

[00:05:14] Speaker 02:
Right.

[00:05:15] Speaker 02:
I understand there's a circuit split.

[00:05:16] Speaker 03:
And I think this is the difficulty that leads to that circuit split.

[00:05:20] Speaker 03:
And Strickland itself acknowledges that the two prongs are interrelated.

[00:05:25] Speaker 03:
that something, that you can't separate them with a complete wall between them because something, whether it's deficient or not is going to depend on how big of a deal to the outcome of the trial it is and whether it's prejudicial is going to determine how badly the attorney's screwed up.

[00:05:38] Speaker 02:
I'll ask you a question and I want opposing counsel to think about this.

[00:05:41] Speaker 02:
Is there a case in the Ninth Circuit where we have said there was actually no underlying error but there was cumulative error?

[00:05:51] Speaker 03:
I'm not aware of such a case.

[00:05:53] Speaker 03:
Okay.

[00:05:55] Speaker 03:
If accumulating prejudice is the right approach, assuming that that is the right approach, you still need to get to the Strickland threshold, which is a reasonable probability to undermine confidence in the outcome.

[00:06:07] Speaker 03:
And you can't get to that here.

[00:06:09] Speaker 03:
And the reason you can't get to that here is because none of these errors

[00:06:13] Speaker 03:
I guess what I could say, and it's not a numeric standpoint, but let's say you had one error that was 25 percent there, one that was 25 percent there, you know, you could add those to get, you know, if you add them up and it's, you know, 100 percent of the Strickland threshold, that's fine.

[00:06:26] Speaker 03:
But if you start with zero percent there, plus zero percent there, plus zero, you're going to end up with zero still, and that's what we have in this case, particularly in the face of

[00:06:36] Speaker 03:
confession detailed confession consistent with the physical evidence he showed up to the sheriff's department wearing the clothes the victim described he had scars on his hands that were consistent with the victims description of the victim or the of her attacker who is that is that in in the state's position is that the easiest way to slice through this case is just say there was no prejudice I mean could we theoretically go through that and say

[00:07:03] Speaker 02:
Look, we don't know if there's any error on these seven or we don't have to decide it because there was so much overwhelming evidence that there was no prejudice.

[00:07:11] Speaker 02:
Is that a way that we could address this case or not?

[00:07:16] Speaker 03:
That is absolutely the way that this court could address that case.

[00:07:18] Speaker 03:
That's the way the California Supreme Court addressed the claims of ineffective assistance of counsel that were raised in the first state habeas petition.

[00:07:25] Speaker 03:
They did not decide the deficiency issue.

[00:07:28] Speaker 03:
They analyzed prejudice found

[00:07:30] Speaker 03:
That in light of the overwhelming evidence including the confession that there was no chance of a better outcome And so they they denied the writ on those grounds that was a reasonable decision by the California Supreme Court and that reasonable determination by the State Court was entitled to deference in the district court here, so if we concluded that the state

[00:07:52] Speaker 01:
waved any argument about deficient performance on the Claim that council failed to adequately investigate in present a mental state defense I'm assuming from what you've just said the state's position would be that wouldn't matter because there would be no prejudice the there would there would be no prejudice to

[00:08:16] Speaker 03:
Even if it were considered error for trial counsel to not have done more investigation on the potential mental defense There would be no prejudice here and even if the state waived it by not raising it in their opening brief Well the we certainly did not waive our prejudice argument and I'm talking about the first prong of Strickland the deficient performance So but your position from what you said to judge Nelson was?

[00:08:45] Speaker 03:
Cut through all of it and said it didn't matter if they had established the first prong or we didn't have to determine the first prong because we could say no prejudice Yes, I would say I would say even if it were determined that this and I'm not conceding that we have waived that but even if it were Determined that that argument had been waived the the prejudice argument is this positive because Going back to Strickland where that's one of the requirement to granting relief for ineffective assistance of council and

[00:09:12] Speaker 05:
Well, you didn't address it in the opening brief.

[00:09:14] Speaker 05:
Was it because the state court also assumed that counsel may have been ineffective in failing to do a deeper investigation into his mental state?

[00:09:28] Speaker 05:
Well, that's not what... They went to the prejudice prong only.

[00:09:32] Speaker 03:
Yeah, they did.

[00:09:33] Speaker 03:
And that is an analytical approach that is endorsed by Strickland itself that says that if one, if either deficiency or the

[00:09:41] Speaker 03:
Prejudice prong is easier to analyze that it's okay to Deal with that because they're both a requirement for relief so either prong is this positive if it's petitioner fails to meet his burden and so That that the California Supreme Court did not rule on that

[00:09:59] Speaker 03:
And they didn't need to.

[00:10:00] Speaker 03:
It was reasonable for them to take the approach they did.

[00:10:02] Speaker 03:
It's... Right.

[00:10:03] Speaker 05:
Well, the state court was pretty critical of the failure to investigate further as to the mental condition, right?

[00:10:10] Speaker 05:
And thinking about, as you said, the evidence as to identity of the perpetrator was pretty compelling.

[00:10:17] Speaker 05:
There wasn't a whole lot defense counsel can do other than try to negate the intent.

[00:10:26] Speaker 03:
Element right so this is where the mental health evidence potentially could be really helpful at the trial yes the intent element as well as the causation element and then of course there's It's clear that trial counsel was Attempting to bring in mitigating facts that would have been relevant to penalty phase in his guilt phase presentation so I mean there's there's ways that the trial counts could approach this and the way that trial council chose here was reasonable and

[00:10:54] Speaker 05:
Well, I guess what I'm trying to say, although maybe not as well as I had intended to, is that in a case like this, there aren't a whole lot of alternatives for defense counsel other than to try to negate the intent to kill, which then would essentially take the death sentence off the table.

[00:11:11] Speaker 03:
That's true.

[00:11:12] Speaker 05:
And one of the things- So what did counsel do in an effort to negate the intent to kill element?

[00:11:19] Speaker 03:
What one of the things that's really remarkable about this case is there was a full-blown hearing on exactly that question on the issue of Failure to investigate mental defenses so unlike in some other ineffective assistance of counsel cases We're not limited by to the trial record here.

[00:11:34] Speaker 03:
We have an evidentiary hearing lengthy petitioner had a chance to put on a lot of evidence and it was overseen by a trial judge California Supreme Court then reviewed those findings and endorsed them in fully and

[00:11:49] Speaker 03:
And so here there is a robust record on, that specifically goes to the prejudice issue of, and yes, they said it was a close question, the exact words of the California Supreme Court, it was a close question on whether trial counsel should have done more investigation, but was also very, very clear from the California Supreme Court's findings here, the factual findings, is that had he done so, he would not have

[00:12:11] Speaker 03:
discovered grounds for a better defense or a better alternative and certainly not enough to move the needle to the Strickland threshold of a reasonable probability to undermine confidence in the outcome of the trial.

[00:12:23] Speaker 05:
So what is that best case that he could have put on had he done the appropriate investigations?

[00:12:28] Speaker 05:
Now I'm going to the prejudice element.

[00:12:30] Speaker 05:
He would have gotten his expert to say that the defendant was in a dissociative state at the time that the crime was committed.

[00:12:39] Speaker 03:
His best case would have been to get an expert like Dr. Pettis, the expert who gave a declaration and who also testified at the reference hearing, to opine that he was in a psychotic or dissociative state at the time of the offense, and therefore that would have undermined his ability to form an intent to kill.

[00:13:03] Speaker 01:
That state would be induced by drug use?

[00:13:08] Speaker 03:
drug use or there was.

[00:13:10] Speaker 01:
Mental illness.

[00:13:11] Speaker 03:
He's not actually been diagnosed with a mental illness and Dr. Pettis didn't even go that far as to give him a specific diagnosis.

[00:13:18] Speaker 03:
He said he diagnosed him with symptoms, certain symptoms related to having experienced trauma in his youth.

[00:13:25] Speaker 03:
But yeah, looking at what is the best case for a petitioner had his attorney tried to present such a defense, it would have been somebody like Dr. Pettis or maybe Dr. Pettis coming in and testifying

[00:13:38] Speaker 03:
to the trier of fact, this is, he was in the dissociative or psychotic state during the crime and that undermined his ability to form the intent to kill.

[00:13:49] Speaker 05:
And tell me why that evidence wouldn't have undermined the intent to kill?

[00:13:54] Speaker 03:
Well so, and this is where we get to, this is where EDPA becomes very important that we have deference to factual findings is because there was a factual finding as to this.

[00:14:03] Speaker 03:
Dr. Pettis was found not credible at the state court hearing.

[00:14:09] Speaker 03:
It was found that his opinion was based on an examination done of a petitioner years after the offense.

[00:14:18] Speaker 03:
And it also relied on information from petitioner's family, which was found to be recently fabricated.

[00:14:24] Speaker 03:
So that's why I say that this is a remarkable case where we have this in-depth fact finding.

[00:14:28] Speaker 03:
We have a factual finding that this was not credible.

[00:14:30] Speaker 02:
The federal district court below, it took that on, didn't it, and said that that factual finding was clearly erroneous?

[00:14:37] Speaker 02:
Or did it not?

[00:14:38] Speaker 02:
Did it ignore it?

[00:14:40] Speaker 03:
The district court the district court did find that district courts ruled that the 2254 D deference had been or had been undermined by so that the requirements that I've been satisfied to undermine that that level of deference and so the district court applied a de novo review.

[00:14:58] Speaker 02:
Using the strip and so you would argue that that was legal that the district court engaged the federal district court engaged in legal error When it did that because it didn't accord the double deference Yes to that factual by substituting its view of the facts for the factual findings of the state court that that's a legal error under Edpa What is the standard for reversing?

[00:15:22] Speaker 02:
Under Edpa a factual finding like that could you ever can you ever do that?

[00:15:27] Speaker ?:
I?

[00:15:31] Speaker 02:
So it's it's in 2254 D which is it would have to be yet if the if the state court applied it clearly applied clearly erroneous federal law or excuse me but that's why that's why I'm asking about the factual we get the legal arguments a lot I haven't seen it so much under the you know where a district court federal district court on habeas just takes on a factual finding and rejects it and so I'm less clear

[00:15:58] Speaker 01:
I mean especially a credibility determination that seems Or difficult for the district court to reject from the state court.

[00:16:07] Speaker 03:
I completely agree with you I mean that that's that's where we come to a real problem with the district court's ruling is Can you help us out?

[00:16:15] Speaker 02:
I'm sorry.

[00:16:15] Speaker 02:
I didn't mean to cut it off, but I

[00:16:17] Speaker 02:
This leads to a bigger question, which is, is there something going on that we need to know about?

[00:16:21] Speaker 02:
Like, we read the briefs, and if there's anything you can tell, but it's unusual for a district court to grant habeas on seven issues.

[00:16:30] Speaker 02:
Usually, if that happens, it comes up, and you're pretty confident.

[00:16:34] Speaker 02:
This, there seems to be something else going on in this case.

[00:16:37] Speaker 02:
The district court was very, was he just convinced that this guy was innocent, or hadn't received due process, or, I mean, is there anything more where you would before the district court?

[00:16:47] Speaker 03:
So I wasn't, and even if I were, I wouldn't presume to speak for... I just wonder if there's something more we need to know that's going on here that we're not aware of.

[00:16:57] Speaker 03:
Well, I can say that I've read the ruling, obviously, as you all have, and what I would say is what's going on here is clear from the face of the ruling.

[00:17:08] Speaker 03:
He didn't analyze prejudice for any of these claims leading up to it.

[00:17:12] Speaker 03:
And so

[00:17:14] Speaker 03:
You try and aggregate all these supposed deficiencies in trial counsel's performance.

[00:17:20] Speaker 03:
But the problem is you don't do that Strickland analysis to say, what is the impact of these supposed deficiencies?

[00:17:27] Speaker 03:
And so then you're left with the only prejudice analysis is the cumulative prejudice analysis.

[00:17:31] Speaker 03:
If it turns out that that was done incorrectly, which it was here, then you don't have a fallback about these individual

[00:17:40] Speaker 03:
you know, it would have been different if he had done each individual claim, and then also, by the way, I'm going to do cumulative prejudice analysis, you know, then there's maybe a fallback position here, but here there's a ripple effect to using this cumulative prejudice approach, which is that even if some of these other arguments about supposed deficiencies, even if they have some merit to them, there's no prejudice analysis to back that up.

[00:18:04] Speaker 03:
You know, specifically

[00:18:06] Speaker 03:
The argument to waive jury, the prejudice there is it's purely speculative.

[00:18:13] Speaker 03:
The idea that there would be a better, that he would have gotten a better outcome in front of a jury instead of a judge.

[00:18:19] Speaker 03:
There's been no finding as to that.

[00:18:22] Speaker 03:
It's just pure speculation.

[00:18:24] Speaker 03:
And same thing with the idea that there's a third party culpability defense that could have been viable.

[00:18:29] Speaker 03:
Specifically, I mean, the person they're trying to use as the third party culpability person

[00:18:34] Speaker 03:
Mr.. Johnson, it's in the victim's description.

[00:18:38] Speaker 03:
She says Mr.. Says Johnson rerun he's fat Scott is thin like there's just even that there's no grant There's no possibility that's gonna be a successful.

[00:18:49] Speaker 02:
I'll say that seemed that was the one that gave me the most concern though of the arguments because I mean you agree that if there was medical negligence and that would have been relevant that would have been a basis to grant a

[00:19:04] Speaker 02:
habeas relief right if you're saying if there'd been medical negligence well yeah I guess that's too amorphous of a question it had to be medical negligence that and this is where we have to be careful that was the sole cause of the death it I believe that California state law is that if it's grossly inappropriate

[00:19:26] Speaker 03:
It can become a superseding cause of death, which would then make... What's the standard there?

[00:19:32] Speaker 03:
Is it contributing or sole contributing?

[00:19:36] Speaker 01:
i think it in the the case also grossly inappropriate or uh... grossly receiving superseded costly gross incompetence such that it becomes a superseded so clearly uh... the victim was severely injured when she was burned but this defense theory was she would have survived but for medical negligence and because of the negligence and not detecting urine output in

[00:20:01] Speaker 01:
you know, her lungs filling and all of that, she died.

[00:20:05] Speaker 01:
And so that was the cause.

[00:20:06] Speaker 01:
That was the superseding cause of her death.

[00:20:09] Speaker 01:
And I recognize there's quite a bit of testimony in the trial transcript, something like 400 pages of medical records opining on the care she received.

[00:20:21] Speaker 01:
So I thought that petitioner's argument was not that

[00:20:27] Speaker 01:
Was necessarily true that it was a superseding cause but that?

[00:20:33] Speaker 01:
Defense counsel sort of pinned his hopes on you know fleeting argument that it wasn't going to succeed and that it wasn't a valid argument to make Yes, that that was the yes, so that's the the criticism right is that had he is it?

[00:20:49] Speaker 03:
Ordinary medical negligence isn't enough and having it being a contributory cause isn't enough and so under

[00:20:55] Speaker 03:
That's what petitioner contends at this point that that was a forlorn hope doomed to fail from the beginning and the California Supreme Court said even if it was even if that's true That there's still no prejudice under Strickland because picking a bad strategy When there aren't good a good when there isn't a good strategy available.

[00:21:15] Speaker 03:
That's not ineffective assistance of counsel.

[00:21:16] Speaker 01:
It's not didn't have sort of a

[00:21:20] Speaker 01:
of downstream effect in that after counsel decided to use that strategy he then decided to counsel the petitioner to not have a jury to have to present this medical negligence defense before a judge and so you know that if it's a doom strategy and then it leads to giving up his right to a jury

[00:21:45] Speaker 03:
It seems that that could lead to some prejudice and mean instead of convincing 12 people Beyond reasonable doubt of his guilt a state only had to convince one That that is petitioners contention what that ignores however is the fact that these horrific facts also get to give tried in front of a court instead of 12 jurors from the Antelope Valley part of Los Angeles County where

[00:22:14] Speaker 03:
the trial counsel had a lot of familiarity and was concerned that the jury pool there would be leaning conservative and so he talked about how not wanting to put this case in front of a jury from that jury pool was also a factor in advising the way of jury but you're right that the choice of a medical negligence fence was the main reason why he advised to waive jury but the fact that there would have been other fact-finders lay fact-finders instead of a trained judge that doesn't necessarily

[00:22:43] Speaker 01:
We're still left speculating about the So how can they prove that it would have a diff the result would be different I mean I mean isn't it always going to be speculation because this is a trial that he had so how do you know unless you reach right in front of a jury and I'm sort of hung up now on how we Conclude whether there was prejudice how certain do we have to be that there'd be a different result?

[00:23:05] Speaker 03:
well, so the cases that the district court cites and that point are a

[00:23:10] Speaker 03:
Those are cases where there was not speculation about prejudice.

[00:23:13] Speaker 03:
Those are cases where, so there was a case that this court cited where there was a complete failure to file notice of appeal.

[00:23:22] Speaker 03:
So it completely gave up the right to it.

[00:23:24] Speaker 03:
So that's not a situation of going in front of one, it's not a forum selection issue of trier fact being the court, trier fact being the jury.

[00:23:32] Speaker 03:
That's a question of there isn't a case.

[00:23:34] Speaker 03:
And so in that case, the Supreme Court said that we presume prejudice, right?

[00:23:39] Speaker 03:
And other cases where the record shows prejudice, where giving up an advantageous plea bargain and getting a worse sentence at trial, then you're not speculating at that point with that record about what the prejudice would be.

[00:23:52] Speaker 03:
So there are cases where advice during the plea bargaining process or in the pretrial process, where the record can support a finding of prejudice, or in the case where there's a total waiver of the right to appeal, then that would be a situation where there would be

[00:24:08] Speaker 03:
presumed prejudice so There are cases where you could have prejudice just not this case I know you're down to about six minutes.

[00:24:16] Speaker 05:
You want to save some time.

[00:24:17] Speaker 03:
I do want to save some time although I Essentially we're going to get into the third-party culprit since it judging else had a question about that that we didn't third-party Oh I mean, I'm happy to wait for rebuttal if you want well, then thank you your honor

[00:24:44] Speaker 04:
Good afternoon and may it please the court.

[00:24:46] Speaker 04:
Emily Grondike on behalf of petitioner appellee James Scott.

[00:24:50] Speaker 04:
The Supreme Court instructs that habeas relief is restrained to extreme malfunctions of the legal system.

[00:24:57] Speaker 04:
The district court correctly found that this is just such an extreme case.

[00:25:01] Speaker 04:
Trial counsel selected the medical negligence defense that was foreclosed by the facts in the law as they were known at the time.

[00:25:10] Speaker 04:
And then in light of that fundamentally unreasonable decision,

[00:25:13] Speaker 04:
He forwent all other investigation, all other research, and as Your Honor pointed out, made a series of important decisions, including waiving the right to jury.

[00:25:24] Speaker 05:
Didn't that defense advance the ball?

[00:25:27] Speaker 05:
Because the trier fact, the judge did find that there was negligence, medical negligence, and that it did contribute to her death, right?

[00:25:37] Speaker 05:
It just didn't go far enough to be the superseding cause, so therefore,

[00:25:41] Speaker 05:
he was still convicted.

[00:25:42] Speaker 05:
So I'm not given the options that council had setting aside whether he should have conducted a much more in depth investigation into the mental state issue.

[00:25:55] Speaker 05:
I don't know that that was so unreasonable, especially with the double deference standard that we have to deal with here.

[00:26:01] Speaker 04:
So your honor, the state of the law was that if the injury was an injury that could cause death,

[00:26:09] Speaker 04:
then no amount of negligence, including gross negligence, would be adequate to sever the chain of liability.

[00:26:17] Speaker 04:
And we cited the California case law in the briefing.

[00:26:20] Speaker 04:
So in this case, when counsel was presented with a situation where the victim was unconscious in bed, and the bed was then set on fire, and she had burns on 3 fourths of her body, I believe, even a lay person could understand that that's an injury that could cause death.

[00:26:38] Speaker 04:
But beyond that, there was a declaration before the Supreme Court with the habeas from Dr. Unger, who was a doctor that counsel consulted.

[00:26:46] Speaker 04:
And Dr. Unger said he informed counsel that that was not going to work as a defense.

[00:26:51] Speaker 04:
So in this situation, counsel, I think even without medical advice, could have understood that this was not going to fly.

[00:26:58] Speaker 02:
But what was the better option?

[00:27:00] Speaker 02:
I mean, we hear these cases all the time.

[00:27:03] Speaker 02:
Counsel's making the best

[00:27:05] Speaker 02:
assessment they can I and I gotta be honest I would have thought that the medical negligence claim had some weight I you know you you raise an interesting question about how high the standard really was under California law but what what were the better options that he so I think a reasonable attorney would have ended up with a few options so if a reasonable attorney would have investigated and challenged the confessions and as the district court correctly pointed out

[00:27:35] Speaker 04:
The state would have borne the burden to demonstrate not only that there was no coercion, but also that that Miranda waiver was knowing and intelligent.

[00:27:44] Speaker 04:
In this case, there was no signed Miranda waiver for the first interrogation.

[00:27:47] Speaker 04:
And the police report showed that Mr. Scott was behaving so in such a disturbed manner that police officers stopped the interrogation, brought his mother in to calm him down, and she told police that he needed psychiatric help.

[00:28:01] Speaker 04:
In face of those facts, a reasonable attorney would have filed a motion to suppress.

[00:28:05] Speaker 05:
But counsel also had indications that his multiple personality manifestation was fabricated.

[00:28:16] Speaker 05:
So counsel had to weigh that into the equation.

[00:28:18] Speaker 04:
Not necessarily, Your Honor.

[00:28:19] Speaker 04:
I mean, challenging the validity of a Miranda waiver and the state's ability to carry its burden on that point is something that a reasonable attorney could and would do, regardless of their opinions about the truth of the underlying facts.

[00:28:34] Speaker 04:
stated in the confession.

[00:28:37] Speaker 02:
But I thought the trial judge who sentenced, I mean this was tried before a judge, I thought the judge actually said she wasn't, do I have it right, she wasn't relying on

[00:28:54] Speaker 02:
the confession that she, I mean, I thought she sort of discounted that.

[00:28:59] Speaker 02:
I know she didn't, she didn't exclude it, but I guess this comes back to the prejudice.

[00:29:04] Speaker 02:
Like if you got rid of the, if you got rid of the confession, aren't you still struggling with a lot of evidence that suggests guilt here?

[00:29:13] Speaker 04:
So I have two responses to that, your honor.

[00:29:14] Speaker 04:
First, I believe what you're thinking of is that the trial court said that she was not considering the fact that defense counsel brought to her attention

[00:29:21] Speaker 04:
which was that Mr. Scott had previously pleaded guilty to the attempted murder.

[00:29:27] Speaker 04:
She stated that she was not considering that.

[00:29:30] Speaker 04:
That's one element that the district court found unreasonable.

[00:29:33] Speaker 04:
But if that confession had been suppressed, or even if that confession had not been suppressed, but there had been a suppression hearing, Officer Snyder would have said what he ultimately did say in federal habeas, which is that he gave Scott details of the crime before that interrogation began.

[00:29:51] Speaker 04:
And with that fact alone, those confessions, purported confessions, look much less weighty and much less reliable than they do at first blush.

[00:30:01] Speaker 04:
And with that information, a defense attorney could have gone a few different ways.

[00:30:06] Speaker 04:
They could have said, well, I can challenge this confession to the jury or the fact finder, argue that it might have been suggested, argue it's not as meaningful as it looks, and attempt to create a reasonable doubt in the mind of one juror, which is what they needed to do.

[00:30:21] Speaker 04:
Alternatively, defense counsel could have said, well, knowing that there was some suggestion involved in these confessions, these confessions don't look inconsistent with a mental state defense.

[00:30:32] Speaker 04:
And they could have pursued that evidence and put that on.

[00:30:34] Speaker 04:
That's the kind of information that a defense attorney needs to make an informed decision about the strategy they're going to take at trial.

[00:30:42] Speaker 05:
So getting back to Judge Nelson's question about alternatives, because the state court did address the question of prejudice, and you did raise a cumulative prejudice argument.

[00:30:54] Speaker 05:
So let's assume that there were some errors along the way, and we don't reach the first Strickland prong.

[00:31:01] Speaker 05:
We still have to apply a deference over the state court's determination of no prejudice, right?

[00:31:07] Speaker 04:
Yes, Your Honor.

[00:31:08] Speaker 05:
So can you get to the heart of it and tell me what your best argument is for prejudice?

[00:31:12] Speaker 04:
The district court correctly applied 2254 D to the prejudice question, the cumulative prejudice question.

[00:31:18] Speaker 04:
It also specifically applied it to prejudice on the jury waiver.

[00:31:22] Speaker 04:
But if you're asking me to picture what this trial could have looked like.

[00:31:27] Speaker 04:
There could have been numerous consistent witnesses who testified about Mr. Scott's history of trauma and, importantly, his history of using cocaine and PCP in the period leading up to the crime and even on the day of the crime.

[00:31:44] Speaker 04:
That evidence fed into Dr. Pettis's opinion that Mr. Scott was psychotic and dissociating at the time of the crime and the time of the confession.

[00:31:54] Speaker 05:
So this gets to a question that I raised with

[00:31:57] Speaker 05:
your opposing counsel, because it seems to me that the evidence tying him to the crime, establishing who the perpetrator was, was fairly compelling.

[00:32:08] Speaker 05:
So a reasonable strategy would be to try to negate the intent to kill.

[00:32:15] Speaker 05:
But the best that he could come up with is Dr. Pettis, who I thought

[00:32:22] Speaker 05:
was inconclusive on the question of whether he was capable of forming the intent to kill.

[00:32:28] Speaker 05:
Nobody said he has multiple personality disorder that's been ruled out, I think, even by the defense expert.

[00:32:34] Speaker 05:
So then what you're left with, as I understand the record, and please correct me if the case is more compelling for the defense than my recollection, is that you did come up with testimony that he was in a disassociative state, but according to the defense expert, it was not

[00:32:53] Speaker 05:
Let's say the opinion wasn't clear on the intent to kill element.

[00:32:58] Speaker 05:
Is that the best case?

[00:32:59] Speaker 04:
What Dr. Pettis testified at the state reference hearing is that in light of his psychosis and dissociative state, Mr. Scott was not capable of weighing right and wrong, and that it was not clear that he was capable of understanding the consequences of his actions.

[00:33:15] Speaker 04:
He did not opine on the ultimate issue, but I don't think that a California trial court would have allowed an expert to opine on the ultimate issue.

[00:33:22] Speaker 04:
So in light of that evidence, along with the consistent evidence of Mr. Scott's trauma and drug use, the question is, is there a reasonable probability that one juror would have harbored a doubt about his ability

[00:33:34] Speaker 04:
To form the intent to kill or his understanding of right and wrong, but how?

[00:33:40] Speaker 01:
How would you how would counsel have explained?

[00:33:44] Speaker 01:
The petitioners actions and setting the victim on fire setting the bed on fire because the the trial judge concluded that that was compelling evidence of His of intent to kill an intent to cover it up that he was attempting to burn her up to cover the evidence and and found that that

[00:34:03] Speaker 01:
I think the trial judge concluded that that was basically dispositive on the issue.

[00:34:07] Speaker 01:
So how would trial counsel have gotten around that?

[00:34:10] Speaker 04:
Well, again, the trial court didn't hear any of this evidence about Mr. Scott's psychosis and dissociation.

[00:34:16] Speaker 04:
And the trial court didn't hear an expert opining that even under those conditions, while he could do those physical acts, he did not necessarily understand the consequences of his decision-making.

[00:34:27] Speaker 04:
So that's the evidence that would raise a reasonable doubt about whether he had that intent to kill.

[00:34:34] Speaker 05:
How do we look at the fact that the referee that was appointed rejected Dr. Pettis' testimony?

[00:34:42] Speaker 05:
How do we weigh that in now because that evidence came up in the post-conviction proceedings, right?

[00:34:47] Speaker 04:
Yes, Your Honor.

[00:34:48] Speaker 04:
The state court's prejudice findings were unreasonable on several counts.

[00:34:53] Speaker 04:
First, throughout, both on deficiency questions and prejudice questions, the state court relied on Mr. Scott's

[00:35:01] Speaker 04:
purported confessions, but at the same time the referee precluded any evidence that would undermine the validity of those confessions.

[00:35:09] Speaker 04:
Similarly, the state court dismissed the credibility of some of the lay witnesses claiming that they believe that Mr. Scott was innocent, while it precluded defense counsel from presenting evidence of third-party perpetrators.

[00:35:25] Speaker 04:
The state court also ignored

[00:35:28] Speaker 04:
substantial corroborating evidence that would have supported the testimony of those lay witnesses.

[00:35:33] Speaker 04:
For example, not only were those witnesses consistent with one another, they were consistent with statements made to the competency evaluators.

[00:35:41] Speaker 04:
They were consistent with Scott's statements to police on the day of his interrogation, with his statements to defense investigators.

[00:35:48] Speaker 04:
They were consistent with a 1986 prison record that

[00:35:51] Speaker 04:
noted that Mr. Scott had a history of hallucinations and paranoid delusions.

[00:35:57] Speaker 04:
The state court did not address any of that corroborating evidence.

[00:36:01] Speaker 04:
It was consistent with the testimony of Mr. Vargas who also testified about Mr. Scott's inebriation on the day of the offense.

[00:36:07] Speaker 01:
That witness was someone that the referees explicitly found credible and yet the state court wholesale rejected the testimony of mr. Scott's friends and family members Regarding his drug use and his mental health there was there was inconsistency so some family members testified about drug use and then I believe his stepfather said something different and then the Three sisters wanted to provide alibi evidence, but it was conflicting alibi evidence and and then the girlfriend was claimed of the other victim and

[00:36:35] Speaker 01:
separate rape victim testified that that was a consensual affair and so going through the weight of all these this witness testimony the the referee rejected it so it why is that unreasonable well the stepfather wasn't present near or leading up to the time of the crime what he said is he didn't see Mr. Scott using drugs during childhood evidence exactly and the evidence from the family family members weren't there either there was all you know this background evidence of his abuse and trauma and how that affected his

[00:37:04] Speaker 01:
his abilities to form the intent to kill and his dissociative state and the referee rejected it.

[00:37:10] Speaker 01:
And so then we have to find that that was unreasonable, that the state court was unreasonable.

[00:37:16] Speaker 04:
Yes, the process the state court undertook by excluding Mr. Scott's evidence that would shore up his case while at the same time finding his case not credible.

[00:37:25] Speaker 04:
That was the unreasonable process.

[00:37:27] Speaker 04:
I'd also like to note, Your Honor, that defense counsel presented medical records from Mr. Scott's overdose during childhood, school records about CPS being involved in the household.

[00:37:37] Speaker 04:
Those were contemporaneous records that the state court did not address at all when it found those lay witnesses not credible.

[00:37:47] Speaker 02:
Can I ask about the cumulative prejudice claim?

[00:37:51] Speaker 02:
I want to make sure I understand the framework is is that a separate claim on its own or the cumulative prejudice you still have to find some other error.

[00:37:59] Speaker 02:
And if it fails under prejudice you can accumulate the prejudice to support that.

[00:38:05] Speaker 04:
Yes your honor so what would have to have any Strickland claim you have to demonstrate that counsel was deficient which means they acted unreasonably.

[00:38:12] Speaker 04:
And that there was prejudice, a reasonable probability of a different result, which is a standard lower than a preponderance.

[00:38:18] Speaker 02:
OK, so we would still have, in order to rule for you on cumulative error or prejudice, we'd still have to find some error.

[00:38:25] Speaker 02:
We can't say there was no error, but they're all close enough.

[00:38:28] Speaker 02:
That's not your argument.

[00:38:29] Speaker 04:
What you would have to find, Your Honor, is that there was deficiency.

[00:38:31] Speaker 04:
Right.

[00:38:32] Speaker 04:
Trial counsel was deficient in some or all of these regards.

[00:38:34] Speaker 02:
But if it fails under prejudice, you can somehow accumulate them to say no one of these errors

[00:38:41] Speaker 02:
But I guess you can only cumulate prejudice as to those errors that we find.

[00:38:45] Speaker 02:
So if we looked at the seven errors and found, you know, three of them were, there was a deficiency, we could only cumulate the prejudice from those three errors.

[00:39:01] Speaker 02:
We couldn't do it from the other.

[00:39:02] Speaker 04:
Correct, Your Honor.

[00:39:04] Speaker 02:
And you agree that there's a circuit split on this issue?

[00:39:07] Speaker 02:
Whether you can because I hadn't really thought about I asked the question is there a case where we've actually used cumulative Prejudice where we've said hey there wasn't enough prejudice on this claim of this deficiency But if you combine these three there is so I don't know the underlying facts I know that what this court said in Boyd versus Brown is that you?

[00:39:31] Speaker 04:
Analyze each of the claims to determine whether counsel was deficient and

[00:39:35] Speaker 04:
And then, but prejudice may result from the cumulative impact of multiple deficiencies.

[00:39:40] Speaker 04:
Our position is that's fundamentally consistent with the language of Strickland itself, which says that the question is whether there was a reasonable probability of a different result from trial counsel's errors.

[00:39:52] Speaker 04:
So that's an inherently cumulative question.

[00:39:54] Speaker 02:
Well, it sort of doesn't matter.

[00:39:55] Speaker 02:
We've at least given a head nod.

[00:39:57] Speaker 02:
We've at least said, that's the law here, that you can cumulatively combine prejudice in the Ninth Circuit.

[00:40:05] Speaker 02:
But other courts have said, no, that's not what Strickland has said.

[00:40:08] Speaker 04:
I also think, as we stated in our letter, the Supreme Court's recent decision in Glossop, in which it cumulated prejudice not just from

[00:40:17] Speaker 04:
Similar claims but from different kinds of claims also supports the idea that at a minimum you could cumulate error prejudice from Strickland claims.

[00:40:29] Speaker 04:
I do want to briefly address the competency evaluations.

[00:40:33] Speaker 04:
This court has repeatedly made clear that a competency evaluation is not a reasonable basis on which to rule out a mental state investigation.

[00:40:41] Speaker 04:
That's all the more true in this case.

[00:40:44] Speaker 04:
Those competency evaluations happened over a month after the offense.

[00:40:47] Speaker 04:
At that time, Mr. Scott was no longer under the influence of drugs and alcohol, and he was importantly taking antipsychotic medication at the time of those evaluations.

[00:40:57] Speaker 04:
So it's not surprising then that Mr. Scott was not psychotic at that time.

[00:41:02] Speaker 04:
Neither of the competency evaluators found that he was malingering mental illness.

[00:41:07] Speaker 04:
In fact, they found that he appropriately and accurately answered the competency questions, which supports the conclusion that he was not malingering.

[00:41:14] Speaker 04:
What Dr. Sharma said was that he endorsed symptoms not consistent with mental illness, but the only symptom he identified was a headache that Mr. Scott, he believed Mr. Scott was exaggerating to wrap up the interview faster.

[00:41:29] Speaker 04:
So while they are distinct inquiries, I think a reasonable attorney in this case would have looked at those evaluations and in fact seen red flags that would have encouraged him to investigate further.

[00:41:39] Speaker 04:
Both of those competency evaluations acknowledged Mr. Scott's history of drug and alcohol use, including

[00:41:44] Speaker 04:
in the period leading up to the offense, including use of PCP, which causes psychosis.

[00:41:50] Speaker 04:
Both of those also included evidence of trauma in Mr. Scott's background.

[00:41:54] Speaker 04:
So a reasonable attorney looking at that would not say, oh, there's nothing to do with mental health here.

[00:42:00] Speaker 04:
A reasonable attorney would say, I need to investigate further and find out what happened.

[00:42:10] Speaker 02:
Already keep coming back to cumulative prejudice, but now I'm starting to wonder can we just decide this case on prejudice?

[00:42:19] Speaker 02:
Say there was no I guess we could still say there's no prejudice even assuming that all the errors happened, but We'd have to say that right I mean I guess I'm wondering can we get away from looking at these deficiencies one by one because if there's a cumulative prejudice argument doesn't that sort of force you to address and

[00:42:39] Speaker 04:
Which ones whether there's a deficiency yes your honor you do have to find the deficiencies as well as the cumulative prejudice and The state the district court excuse me did explicitly apply 2250 4d to that question on The subclaims to which it should apply.

[00:42:55] Speaker 04:
I'll note that on the mental state That review of deficient performance is de novo because the state court never reached that decision and

[00:43:05] Speaker 04:
Which one I'm sorry the failure to present investigate and present a mental state defense Turning I'll also note on that that Your honors have asked a number of questions about the state courts factual findings the district court also applied 2254 e

[00:43:28] Speaker 04:
To find that the state court's factual finding was incorrect by a standard of clear and convincing error.

[00:43:35] Speaker 04:
To the finding that- But how is that supported?

[00:43:40] Speaker 02:
I mean, clear and convincing error, I mean, I'm trying to analogize all these different standards, but like in the immigration context, we get up and the question is, is there substantial evidence?

[00:43:51] Speaker 02:
It means is there any evidence?

[00:43:52] Speaker 02:
Like you could weigh it and say,

[00:43:54] Speaker 02:
Yes, 70% goes one way, 30% goes the other way.

[00:43:58] Speaker 02:
But if you pick the 30%, that's OK.

[00:44:01] Speaker 02:
So how do we evaluate this standard?

[00:44:03] Speaker 02:
Because on all these claims, some of them were closer than others.

[00:44:08] Speaker 02:
But none of them seemed to be so clearly erroneous that it was just out of the realm of what a fact finder could have found.

[00:44:16] Speaker 04:
The district court found by a clear and convincing error standard that the reason that mental state evidence was not presented

[00:44:24] Speaker 04:
was that trial counsel didn't investigate it.

[00:44:27] Speaker 04:
So the court looked at the record and evaluated the state court's finding that one of the reasons that evidence hadn't been presented was that it was recently fabricated.

[00:44:39] Speaker 05:
So but in getting back to the statutory language and our obligation to apply it, it's an unreasonable determination of the facts by the state.

[00:44:50] Speaker 05:
Right?

[00:44:51] Speaker 05:
Setting aside what the district court did, because now we're de novo on that, in deciding whether the state made an unreasonable determination of the facts, what deference do we owe to the state?

[00:45:07] Speaker 05:
I guess that's the more pinpointed question.

[00:45:11] Speaker 05:
And in particular, when it comes to credibility determinations, how do we overturn that?

[00:45:18] Speaker 04:
So I think the language of the statute is all we've got there, which is that you've got to find that the state court decision was based on an unreasonable finding of fact.

[00:45:28] Speaker 05:
Right.

[00:45:29] Speaker 05:
Unreasonable determination of the facts.

[00:45:31] Speaker 05:
Here, there was a referee appointed and the referee made factual findings in terms of who's credible, who's not, what weight to give Dr. Pettis' testimony versus

[00:45:46] Speaker 05:
the other doctors and why Dr. Pettis's testimony didn't carry us weight because it relied on witnesses that the referee found not credible.

[00:45:57] Speaker 05:
How do we disturb those credibility findings?

[00:46:00] Speaker 04:
Well, Your Honor, this court has found decisions based on unreasonable findings of fact in situations where the process was unfair in some fashion or where the state court ignored evidence that was before it.

[00:46:14] Speaker 04:
And I think both of those factors are true here.

[00:46:17] Speaker 04:
How was the process unfair here?

[00:46:18] Speaker 04:
Because the state court repeatedly excluded Mr. Scott's evidence challenging the evidence against him.

[00:46:26] Speaker 04:
and then relied on the strength of that evidence in concluding that he couldn't make out his claims.

[00:46:31] Speaker 04:
For instance, it relied on the strength of the confessions to justify almost everything that trial counsel did and to find that there was no prejudice, but it didn't allow Dr. Pettis to explain his concerns about the voluntariness of the confession and the waiver.

[00:46:47] Speaker 04:
Similarly, it disregarded the lay witnesses because they believed in Mr. Scott's innocence, but they didn't allow defense counsel to present evidence of Mr. Scott's innocence.

[00:46:56] Speaker 04:
Those are the kinds of unfair structural problems.

[00:47:01] Speaker 02:
What evidence of innocence was there?

[00:47:03] Speaker 04:
It didn't allow the defense to present evidence that Mr. Johnson was a police informant, that he was with Mr. Scott substantially more during the day than what he testified at trial, that the evidence that Ms.

[00:47:17] Speaker 04:
Jensen said that she knew her attacker and that she did not, that, sorry.

[00:47:22] Speaker 04:
Ms.

[00:47:23] Speaker 04:
Jensen said that she did not know her attacker, but that she did know Mr. Scott No, I thought she said she wreck it.

[00:47:30] Speaker 02:
I thought she said she didn't know her attacker, but she recognized that she'd seen him before

[00:47:34] Speaker 04:
No, your honor.

[00:47:35] Speaker 04:
She said that she didn't know him, but that she could identify him.

[00:47:39] Speaker 04:
Regarding other individuals, including, I believe, Mr. Johnson, she said that she could recognize him.

[00:47:45] Speaker 01:
So Mr. Johnson lived in the same apartment complex?

[00:47:49] Speaker 01:
Yes.

[00:47:49] Speaker 01:
And as the state's counsel has pointed out, the physical descriptions of Mr. Johnson and Mr. Scott are very different.

[00:48:02] Speaker 01:
She said that the attacker said he was Rerun's brother, Tony.

[00:48:09] Speaker 01:
Rerun is Mr. Johnson's nickname, so she apparently knew that.

[00:48:12] Speaker 01:
So it seemed as if the testimony was pretty clear.

[00:48:16] Speaker 01:
If Mr. Johnson had been the culprit, if he had attacked her, she would have known it was him.

[00:48:21] Speaker 01:
She knew him.

[00:48:23] Speaker 01:
So if that's the evidence of innocence, there's nothing

[00:48:26] Speaker 01:
there.

[00:48:27] Speaker 01:
It's certainly not compelling.

[00:48:28] Speaker 01:
It wouldn't be unreasonable for the state to reject that.

[00:48:31] Speaker 01:
And it's also interesting that the multi-personality persona that Mr. Scott tried to suggest in his interviews was Tony.

[00:48:41] Speaker 01:
Wasn't that the name of his alternate personality?

[00:48:46] Speaker 04:
That is the name he purportedly mentioned during his statements.

[00:48:49] Speaker 04:
But, Your Honor, it's not that the state court heard all of the evidence and rejected it.

[00:48:53] Speaker 04:
is that the state court limited Scott's ability to present that evidence.

[00:48:57] Speaker 01:
Also, specifically as to his sister- But the question with respect to prejudice is, if that had come in, would it have made a difference?

[00:49:03] Speaker 01:
And it doesn't seem that it could have, because it seems clear from the victim's own description of the attacker that it wasn't Mr. Johnson, that the state would not have been able to prove it was Mr. Johnson and that there was nothing to suggest it was him, even if he had been with Mr. Scott for more periods of time during the day and had used drugs with him and all of those things.

[00:49:23] Speaker 04:
I mean, there was also evidence that Mr. Johnson actually admitted his guilt to several several other people to, but again, to Mr. Scott's sisters, right?

[00:49:33] Speaker 01:
I mean, this was part of the testimony that the referee just found was not credible that the family members were fabricating.

[00:49:40] Speaker 04:
That is what the referee found, and I'm arguing that that process and those conclusions were unreasonable.

[00:49:47] Speaker 01:
So Mr. Johnson, if he confessed to the crimes, the victim was somehow unable to distinguish between a person who weighs nearly 300 pounds and a person who weighs 150 pounds and someone has scars on their hands and someone who does not.

[00:50:01] Speaker 01:
I mean, the physical description alone is just going to make it very difficult to suggest Mr. Johnson was the actual perpetrator.

[00:50:08] Speaker 01:
even if he had bragged about it in the community.

[00:50:11] Speaker 04:
Potentially, Your Honor.

[00:50:12] Speaker 04:
I mean, there could have been a discussion of the validity of Ms.

[00:50:16] Speaker 04:
Jensen's identification under pain medication, et cetera, her description.

[00:50:21] Speaker 04:
It's significant, though, that Mr. Scott was in custody at a time when Ms.

[00:50:25] Speaker 04:
Jensen was still awake, conscious, able to make statements, and the police never showed her a photograph of Mr. Scott to identify, never showed her a photographic lineup at all.

[00:50:37] Speaker 04:
The evidence against Mr. Scott, although it's true that he was wearing a tire similar to her description, is not as strong as it could have been if they were serious about investigating this.

[00:50:48] Speaker 04:
But again, Your Honor, even if you find the identity evidence not persuasive and think the state court was reasonable for rejecting it, the fact remains that all of that evidence is entirely consistent with presenting a mental state defense.

[00:51:09] Speaker 04:
The what we have and I think this is why the district court was correct to think about this case as a cumulative prejudice case is a situation where trial counsel didn't investigate the confessions.

[00:51:22] Speaker 04:
didn't investigate Mr. Johnson.

[00:51:25] Speaker 04:
That is to say, didn't investigate the state's key evidence.

[00:51:29] Speaker 04:
At the same time, he didn't investigate whether his client was innocent, and he didn't investigate whether his client had the required mental state.

[00:51:36] Speaker 01:
At the time of the offense, right, this is after 1982, it's 1986, so there was no diminished capacity defense available.

[00:51:44] Speaker 01:
So it had to be diminished actuality, right?

[00:51:47] Speaker 01:
And didn't Dr. Pettis's testimony support that?

[00:51:50] Speaker 04:
So what I pointed out to Judge Nguyen before your honor is that he stated that Mr. Scott didn't understand the consequences of his actions and was incapable of weighing right and wrong.

[00:52:03] Speaker 04:
So that's a diminished capacity defense.

[00:52:05] Speaker 04:
Well, that would have gone to the state's burden to prove that he had the intent to kill.

[00:52:10] Speaker 04:
The state had the burden on that.

[00:52:11] Speaker 01:
Yes, but you're saying that the trial counsel was unreasonable for not investigating a mental status defense, which sounds like would have been a diminished capacity defense, which wasn't available to him at the time.

[00:52:23] Speaker 04:
Well, no, Your Honor.

[00:52:24] Speaker 04:
It was unreasonable for failing to put the state to its burden of demonstrating that Mr. Scott had the intent to kill.

[00:52:33] Speaker 01:
Well, so the state puts on evidence that he lit the bed on fire and said in his confession that he did that.

[00:52:39] Speaker 01:
He agreed he did that to cover up the crime.

[00:52:41] Speaker 01:
And then, so they've met their burden of at least making some prima facie showing of an intent to kill.

[00:52:46] Speaker 01:
And then Dr. Pettis is going to say, but he didn't have the capacity to do it.

[00:52:48] Speaker 01:
He had dementia capacity, which they couldn't offer.

[00:52:50] Speaker 01:
So that leaves trial counsel.

[00:52:53] Speaker 04:
But he didn't say capacity.

[00:52:54] Speaker 04:
What he said was he didn't understand the consequences of his actions.

[00:53:02] Speaker 01:
just at that one particular moment.

[00:53:04] Speaker 01:
So it's a diminished actuality defense at that particular point in time.

[00:53:10] Speaker 04:
I'm not sure it matters what words we put on it because the substance of it is what he would have been allowed to testify about, not the ultimate question.

[00:53:16] Speaker 04:
And when he said unable to weigh the consequences of his actions, unable to understand right and wrong, that could potentially go toward an insanity defense or could have challenged the states

[00:53:29] Speaker 04:
ability to prove that he had the intent to kill.

[00:53:32] Speaker 04:
In the mind of one juror, it could have raised a reasonable doubt about whether Mr. Scott had that intent.

[00:53:36] Speaker 01:
Was there any expert testimony to support an insanity defense?

[00:53:41] Speaker 01:
I didn't think any of them said that.

[00:53:43] Speaker 01:
They all dismiss the notion of a personality disorder and... Understanding right from wrong is the essence of the insanity defense.

[00:53:51] Speaker 04:
And that's what he testified is that Mr. Scott could not.

[00:53:55] Speaker 04:
Going back to what council did present ultimately he presented one expert witness who agreed with the state's theory of causation in the end So as a result of this series of actions what we have is a proceeding that was fundamentally not adversarial and all of that took place in front of a single judge as the fact finder who had been informed of Mr.. Scott's prior guilty plea to

[00:54:20] Speaker 04:
attempted murder.

[00:54:21] Speaker 04:
This is not an adversarial proceeding worthy of murder charges in our system, worthy of a death sentence in our system.

[00:54:28] Speaker 04:
The district court, in light of these multiple compounding errors, concluded that it was left with the abiding belief that a miscarriage of justice had occurred.

[00:54:38] Speaker 05:
I urge this court to agree with that conclusion and affirm.

[00:54:41] Speaker 05:
Let me ask you one final question.

[00:54:43] Speaker 05:
I know I'm going to take you a little over time, but I'll give you that extra time to answer this question.

[00:54:46] Speaker 05:
I was trying to find the name of the doctor, and I don't have it handy.

[00:54:50] Speaker 05:
At the actual trial, the defense did call a doctor who presented testimony that allowed defense counsel to argue the question of diminished actuality during the closing argument, right?

[00:55:06] Speaker 05:
I mean, that was an argument made.

[00:55:08] Speaker 04:
No, Your Honor.

[00:55:09] Speaker 04:
All that the defense counsel presented was his medical expert, Dr. Ginsburg.

[00:55:13] Speaker 04:
who testified about causation, although ultimately when he was shown all of the victims medical records, he agreed that no malpractice had occurred.

[00:55:21] Speaker 05:
Oh, I see.

[00:55:21] Speaker 05:
So the doctor that was called went to the malpractice question.

[00:55:25] Speaker 04:
Yes, your honor.

[00:55:26] Speaker 04:
All that happened regarding Mr. Scott's mental state was that Mr. Johnson mentioned he had done cocaine with Mr. Scott on the day of the offense.

[00:55:34] Speaker 04:
and defense counsel sort of mentioned in closing argument, oh, maybe he didn't have the intent to kill.

[00:55:41] Speaker 05:
So it was based on the drug use evidence that that counsel was able to make that defense argument?

[00:55:45] Speaker 04:
Well, it was based on the drug use evidence that came out from the state's witness, not from any investigation that defense counsel had presented.

[00:55:53] Speaker 04:
And there was substantial available additional evidence on that point.

[00:55:57] Speaker 05:
Right.

[00:55:58] Speaker 05:
Thank you.

[00:55:58] Speaker 05:
Let me see if my colleagues have any additional questions.

[00:56:01] Speaker 05:
Thank you very much.

[00:56:15] Speaker 03:
When looking at what trial counsel did do, trial counsel at the closing argument did argue that the use of drugs led to diminished actuality.

[00:56:29] Speaker 03:
Trial counsel also argued that the confession should not be considered reliable because it wasn't recorded and there was no verbatim statement signed by it.

[00:56:38] Speaker 03:
So a lot of these arguments that are being raised now is,

[00:56:43] Speaker 03:
Trial counsel should have done this, trial counsel should have done that.

[00:56:45] Speaker 03:
Well, trial counsel to a certain extent did do some of those things.

[00:56:48] Speaker 02:
I mean, I think that's the problem is that in some ways I think what you just said actually undermines it because you raised the argument but didn't actually investigate to support the argument.

[00:56:59] Speaker 02:
That seems to be their claim.

[00:57:01] Speaker 03:
Well, and that's where we get into the issue of the findings here that additional evidence would not have made.

[00:57:06] Speaker 02:
I give you that, but I'm just saying, I mean, to a certain degree, the fact that they raised it in closing actually hurts you because that suggests that these arguments had more merit and they didn't investigate them.

[00:57:17] Speaker 02:
We still have to decide.

[00:57:18] Speaker 02:
what would have happened with the investigation, with their prejudice, all that.

[00:57:22] Speaker 02:
But I'm not sure that that's helpful to say, well, they did say this in closing.

[00:57:26] Speaker 03:
Well, it shows that he did the best he could with what he had.

[00:57:29] Speaker 03:
And the other thing, too, that the California Supreme Court brings up is he kind of got to slice it a little thin here, where he got to make the argument of diminished actuality without having to bring in experts who would have shown that he had malingered this Tony persona, or that he faked the Tony persona.

[00:57:48] Speaker 03:
And that allowed him, at penalty, he even argued the split personality, because the Tony testimony came in, but there was no litigation on the record of experts pointing out that the Tony thing was fake.

[00:57:58] Speaker 03:
So he was able to use it as an argument for why, at the penalty phase, for a reason to impose prison instead of death.

[00:58:05] Speaker 03:
So he did get to make the best of it.

[00:58:10] Speaker 02:
In a way that was the best of both worlds for him.

[00:58:13] Speaker 03:
Absolutely, he did.

[00:58:14] Speaker 03:
And that's a reasonable determination, because

[00:58:17] Speaker 03:
When it comes down to the Strickland deficiency, that's a reasonableness question here.

[00:58:22] Speaker 03:
And, you know, when we talk about trial counsel shouldn't have done medical negligence, instead he should have done mental state, or he should have done third-party culpability, or maybe he should have done all three, or just two, or some mix of that.

[00:58:36] Speaker 03:
That's exactly the kind of second-guessing that the Strickland standard says is inappropriate.

[00:58:41] Speaker 03:
And that's not even adding on the additional layer of deference that's required under EDPA.

[00:58:46] Speaker 03:
So here, the district court was required to give double deference.

[00:58:50] Speaker 03:
And when you read this opinion, you can't help but wonder, where is the deference?

[00:58:53] Speaker 03:
So therefore, the judgment of the district court should be reversed.

[00:58:56] Speaker 01:
I have a question for you.

[00:58:58] Speaker 01:
If we were to do that, just for sake of argument, would we remand this for the district court to consider the other claims that the judge did not consider?

[00:59:07] Speaker 03:
Yes, Your Honor.

[00:59:08] Speaker 03:
There are unresolved claims at the district court level.

[00:59:10] Speaker 03:
And that's what we're asking for, is reverse and remand.

[00:59:13] Speaker 02:
For those claims to be adjudicated in the first instance, we can't just we can't deny the petition Pull out at as to these claims Yes, but not we can't resolve the case.

[00:59:27] Speaker 03:
It's going to go back for another life Yes, yeah, it's de novo review of these claims, but there are unadjudicated claims at the district court And that's that's why we're asking for that remedy

[00:59:39] Speaker 03:
Thank you.

[00:59:39] Speaker 05:
Thank you very much.

[00:59:40] Speaker 05:
Thank you, Mr. Bradley.

[00:59:41] Speaker 05:
Thank you, Mr. Grondike, for your very, very helpful arguments this afternoon.

[00:59:46] Speaker 05:
The matter is submitted and will issue a decision in due course.

[00:59:50] Speaker 05:
Court is adjourned.

[01:00:10] Speaker ?:
for this session.