[00:00:00] Speaker 04:
I'm Judge Gould.

[00:00:03] Speaker 04:
I'm presiding today and delighted to be here with my colleagues Judge Smith on my right and Judge Collins on my left.

[00:00:14] Speaker 04:
This case is set for 30 minutes per argument and

[00:00:25] Speaker 04:
Case is Bradford versus Broomfield.

[00:00:36] Speaker 04:
And it's number 2399005.

[00:00:42] Speaker 04:
If a parent wants to make a rebuttal argument, please try to not use yours for 30 minutes up and save some for rebuttal.

[00:01:14] Speaker 01:
Okay, I'm telling good, please proceed Good afternoon your honors supervising Deputy Attorney General Dan Muhammad Ali for the state Yes, I can I'd like to reserve five minutes for rebuttal please I

[00:01:44] Speaker 01:
May it please the court.

[00:01:47] Speaker 01:
I will.

[00:01:47] Speaker 04:
Yourself, if you forget, I'll try to help you out.

[00:01:51] Speaker 04:
But it's really up to you.

[00:01:52] Speaker 01:
Thank you, Judge Gold.

[00:01:56] Speaker 01:
Mark Allen Bradford was eligible for the death penalty because the jury believed Bradford's own words.

[00:02:02] Speaker 01:
That after he brutally beat and raped Linnea Cokes, rendering her incapacitated, he returned to Cokes' department to kill her in order to eliminate her as a witness against him.

[00:02:13] Speaker 01:
The evidence of his premeditation and deliberation was undeniable.

[00:02:18] Speaker 01:
After Bradford brutalized Cokes and her apartment, he returned to his so that he could shower her blood off of him.

[00:02:26] Speaker 01:
While there, he started thinking about Cokes.

[00:02:29] Speaker 01:
He did not want to get caught for his savage assault on her.

[00:02:33] Speaker 01:
When Detective Arnold asked him, so what were you going to do?

[00:02:35] Speaker 01:
Bradford responded, go down there and make sure she was dead.

[00:02:40] Speaker 01:
And that's exactly what Bradford did.

[00:02:42] Speaker 01:
He armed himself with a knife from his kitchen before he returned to Cokes' apartment, where he found her on the floor on her side gasping for air.

[00:02:52] Speaker 01:
He then rolled Cokes over, strangled her with a belt, slashed her throat twice, and stabbed her four times in the heart.

[00:02:59] Speaker 01:
In Bradford's own words, he figured she ought to be dead after all that.

[00:03:04] Speaker 01:
Now, no one disputes that Bradford was drinking on the day that he killed Cokes, but Bradford's unequivocal and detailed confession came almost a day after he murdered her.

[00:03:15] Speaker 01:
And because Bradford's confession left no doubt he intended to kill Cokes, Bradford cannot show either Brady materiality or Strickland prejudice related to any allegedly suppressed BAC report.

[00:03:27] Speaker 03:
I have a threshold question about what framework we use, because we have first the issue of Coleman prejudice, which was the issue that the prior panel remanded, and that would be one

[00:03:40] Speaker 03:
prejudice analysis.

[00:03:42] Speaker 03:
And then we have the elements of prejudice from the merits of the Strickland claim and then materiality issues from Brady that sort of bleed into similar sort of prejudice issues.

[00:03:56] Speaker 03:
And those would be reviewed deferentially under EDPA.

[00:04:00] Speaker 01:
That's correct, Your Honor.

[00:04:00] Speaker 03:
So my threshold question for you is do we have discretion

[00:04:06] Speaker 03:
Assuming, just arguendo, that we were to agree that no prejudice could be shown under an epideferential analysis, can we skip over the Coleman prejudice now and just say we need not decide that because skipping to the merits?

[00:04:27] Speaker 03:
We would deny it on the merits under EDPA and we don't have to reach that because it's not jurisdictional or what is your view on that question?

[00:04:34] Speaker 01:
So your honor, we believe under either the Coleman prejudice or the deferential standard that that prejudice can't be shown under either standard.

[00:04:43] Speaker 01:
However, the easiest way for this court to decide this case is to simply go

[00:04:48] Speaker 01:
on to the merits of the claim and decide it under Edpa deference and and that would just assume that Bradford could show prejudice under Coleman however as we briefed it he cannot

[00:05:04] Speaker 03:
But you agree that under Coleman, we would not apply an EDPA deference type issue.

[00:05:09] Speaker 03:
So the prejudice would essentially be a de novo review?

[00:05:12] Speaker 01:
That's correct, Your Honor.

[00:05:13] Speaker 03:
So it would be de novo prejudice when you were looking at the... But the merits of the prejudice question, whether it's viewed de novo under Coleman prejudice or under EDPA, is substantively the same.

[00:05:23] Speaker 03:
It's just that the standard of review would be different in the two contexts.

[00:05:26] Speaker 01:
Exactly.

[00:05:27] Speaker 01:
It would just simply be whether this court is required to apply EDPA deference or not.

[00:05:32] Speaker 03:
So it would be similar to how, I mean, the statute expressly says we can skip over exhaustion and go to the merits.

[00:05:38] Speaker 01:
Correct.

[00:05:39] Speaker 03:
And it would be similar to that in your view.

[00:05:41] Speaker 01:
Correct, Your Honor.

[00:05:41] Speaker 01:
And that's because here, the California Supreme Court not only imposed a procedural bar, but decided the merits of the claims at issue here and denied them on the merits anyway.

[00:05:53] Speaker 02:
And so as... We have the right under Lambrick versus Singletary to go directly to the merits, do we not?

[00:06:00] Speaker 01:
That's correct, Your Honor.

[00:06:02] Speaker 01:
And so yes, so even assuming the existence of a favorable BAC report in this case, there's no reasonable probability Bradford would have received a more favorable result.

[00:06:15] Speaker 01:
And that's because the evidence of his premeditation and deliberation came from his own mouth.

[00:06:20] Speaker 01:
And not only that, it was corroborated by the overwhelming physical evidence.

[00:06:24] Speaker 01:
For example,

[00:06:25] Speaker 01:
Bradford, before returning to Cokes' apartment, armed himself with a knife.

[00:06:29] Speaker 01:
And then when he got to her apartment, he employed three different methods of killing her.

[00:06:34] Speaker 01:
He strangled her, he slashed her throat, and he stabbed her repeatedly four times in the chest, to be exact.

[00:06:40] Speaker 02:
Isn't there a case law that says that strangulation is per se premeditated?

[00:06:46] Speaker 01:
That's correct your honor as we cited in our briefing.

[00:06:48] Speaker 01:
I believe it was the hernandez case and I don't want to misspeak I can't I can't remember off the top of my head if there was strangulation in crittenden as well But it was yes, I believe it was Crittenden was just the multiple stabbing and blunt force trauma, so it was different multiple methods of killing and so

[00:07:16] Speaker 01:
Just going back to Judge Collins' question, the easiest way for this court to decide this case is to hold that the California Supreme Court could have reasonably denied the claims at issue here because no additional evidence of either intoxication or a diminished actuality defense at the guilt phase could have negated Bradford's intent to kill Cokes.

[00:07:39] Speaker 02:
Let me ask you this.

[00:07:40] Speaker 02:
I have a lot of respect for the judge.

[00:07:42] Speaker 02:
He's a fine judge.

[00:07:45] Speaker 02:
But it seemed to me that he got it backwards.

[00:07:48] Speaker 02:
He was doing a de novo review as if he were the original trier of fact rather than applying ed-pedeference.

[00:07:56] Speaker 02:
And under ed-pedeference, the question is whether the California Supreme Court could have found

[00:08:03] Speaker 02:
Each of these elements that we're talking about is that correct?

[00:08:06] Speaker 01:
That's correct your honor and there were a lot of glaring errors in the district court's order the One the one glaring omission here.

[00:08:14] Speaker 01:
That's fatal to all of it is that the district court?

[00:08:18] Speaker 01:
disregarded The import of Bradford's confession and the district court was required to evaluate the import of Bradford session Do we look at for them just the fourth?

[00:08:30] Speaker 01:
Yes, Your Honor.

[00:08:31] Speaker 01:
We look at the confession, the fourth confession, which was admitted into evidence.

[00:08:36] Speaker 01:
And I believe that the court can look to the statements that Bradford made previously to determine how intoxicated he was.

[00:08:46] Speaker 01:
But when we're evaluating

[00:08:49] Speaker 01:
the prejudice here at trial that could have possibly stemmed from this allegedly suppressed BAC report, which there is no evidence whatsoever that establishes a BAC report was ever completed.

[00:09:02] Speaker 03:
Well, I mean, it does say that the sample was drawn and put into a vial with

[00:09:10] Speaker 03:
the solution that you would use for toxicology testing, isn't that correct?

[00:09:16] Speaker 01:
That's correct, your honor.

[00:09:17] Speaker 01:
However, we know that this blood drawn at the time of Mr. Bradford's booking was sent to serology, and serological testing was conducted on that vial of blood.

[00:09:28] Speaker 01:
And the results of that serological testing were discussed at the preliminary hearing.

[00:09:33] Speaker 01:
Mr. Bradford's counsel extensively cross-examined the criminalist who testified about the blood type,

[00:09:39] Speaker 01:
And there were many technical terms that Mr. Bradford's counsel used, so he clearly was... No indication in the record that any checking was done other than for blood type?

[00:09:51] Speaker 01:
That's correct, Your Honor.

[00:09:52] Speaker 01:
So all we know, this is a very sparse record, and all we know is that Mr. Bradford's blood was drawn at the time of booking.

[00:09:59] Speaker 01:
That was one vial of blood.

[00:10:01] Speaker 01:
It was sent to serology.

[00:10:03] Speaker 01:
That vial of blood was subjected to serological testing.

[00:10:07] Speaker 01:
The results of that serological testing were disclosed to Mr. Bradford's counsel.

[00:10:12] Speaker 01:
Testimony regarding that serological testing came out at the preliminary hearing as well as at the trial.

[00:10:20] Speaker 01:
And then we have this very ambiguous statement from the prosecutor about a year after the preliminary hearing when she requested more blood for further genetic testing in her own words regarding, and let me just back up here.

[00:10:37] Speaker 01:
This was prior to the trial court ruling on whether the confessions would come in.

[00:10:43] Speaker 01:
And so the prosecutor was requesting more blood to conduct DNA testing, and she makes this very ambiguous statement about they were told to use a purple cap instead of the gray cap that would be used.

[00:10:53] Speaker 01:
There's no further explanation about the import of that statement, what the different colored caps meant, whether in fact the cap used on the blood draw at booking had a gray cap.

[00:11:07] Speaker 01:
And what the prosecutor actually meant by this is just ambiguous.

[00:11:14] Speaker 01:
And because of the evidence that is apparent from the record that this vial of blood, one vial of blood was drawn at booking and it was subjected to serological testing.

[00:11:25] Speaker 03:
The physical evidence bulletin says that the gray stopper goes with the potassium oxalate sodium

[00:11:37] Speaker 03:
you know, substance.

[00:11:39] Speaker 03:
And the record of the draw says that it was put into a solution of potassium oxalate and sodium fluoride.

[00:11:50] Speaker 03:
So isn't the natural reading of the comment that they were told to use a purple cap instead of a gray cap tube mean that they did in fact use a gray cap tube

[00:12:05] Speaker 03:
and had the right solution for a toxicology test, and then the record stops.

[00:12:11] Speaker 01:
The short answer, Your Honor, is we don't know.

[00:12:13] Speaker 01:
That could be one way of reading it.

[00:12:16] Speaker 01:
We just simply don't know.

[00:12:17] Speaker 01:
There's too many gaps in the evidentiary record here, and of course, the absence of evidence doesn't mean that a petitioner has met his burden to establish that he's entitled to claim on a relief here.

[00:12:29] Speaker 01:
So, of course, that bulletin is from approximately nine years after Mr. Bradford's blood was drawn in this case.

[00:12:36] Speaker 01:
The form that indicated the blood draw had this pre-printed information on it about the type of solution that was used.

[00:12:45] Speaker 01:
I'm not disputing that that was the solution that was used.

[00:12:48] Speaker 02:
I'm just saying we simply don't know what we... Is it fair to say that whichever solution was used?

[00:12:55] Speaker 02:
there is no evidence showing that the prosecution intentionally failed to deliver that information to the defense.

[00:13:01] Speaker 02:
Is that correct?

[00:13:02] Speaker 01:
That's correct, Your Honor.

[00:13:03] Speaker 02:
That's correct.

[00:13:04] Speaker 02:
And what I think about too is under any scenario, 13 hours had passed since the beginning of this process till the blood sample was taken.

[00:13:16] Speaker 02:
Almost anybody that's ever had a drink knows that alcohol dissipates during that time.

[00:13:21] Speaker 02:
And whichever the sample was, you get this expert

[00:13:25] Speaker 02:
that testified about the probability of what might have been there.

[00:13:30] Speaker 02:
There were three different samples or, if you will, estimates he did.

[00:13:35] Speaker 02:
All of them would have been fatal.

[00:13:37] Speaker 02:
The least was four-something, but that would have been fatal.

[00:13:41] Speaker 02:
But it's all speculation.

[00:13:42] Speaker 02:
There's nothing more than speculation.

[00:13:45] Speaker 02:
And I guess what I struggle with is, you know, when you have a normal Brady claim, you've got the prosecution knows perfectly well that something is helpful to the defense and they intentionally don't disclose it.

[00:13:56] Speaker 02:
And I'm not seeing that in this record.

[00:13:58] Speaker 02:
Am I missing something?

[00:13:59] Speaker 01:
You're not missing anything, Your Honor.

[00:14:00] Speaker 01:
Here there simply is no evidence that the prosecution subjected this vial of blood that was drawn some 13 to 14 hours after the offenses at issue here was ever subjected to toxicological testing and more specifically whether a blood alcohol content

[00:14:19] Speaker 01:
testing was completed and a report was run.

[00:14:23] Speaker 01:
And furthermore, as you've identified Judge Smith, there has been no competent evidence that that blood sample would have had any kind of measurable alcohol in it to do this extrapolation.

[00:14:37] Speaker 03:
That, let me stop you there because given the, you know, the witness testimony about the volume of alcohol he consumed in the period from 10 a.m.

[00:14:49] Speaker 03:
to 4.30, the expert was able to say, you know, given the, the rate of dissipation from the body that it would likely

[00:15:02] Speaker 03:
still have had a substantial amount left.

[00:15:05] Speaker 03:
Isn't that a reasonable inference that it's not that much alcohol isn't going to discharge in 13 hours from the system.

[00:15:12] Speaker 01:
So, Your Honor, it's true that Dr. Cota conducted three different extrapolations based on three different amounts of alcohol that Mr. Bradford may have consumed at the time of the offenses on the day of the offenses.

[00:15:24] Speaker 01:
However, Dr. Cota never declares that he believed that the blood would have contained a measurable amount of alcohol.

[00:15:33] Speaker 01:
His declaration says, if it contained a measurable amount of alcohol, then I would have been able to conduct this extrapolation to a reasonable degree of medical certainty.

[00:15:44] Speaker 01:
He doesn't declare that it's possible that it had it or that it definitively would.

[00:15:51] Speaker 01:
It's all speculative.

[00:15:52] Speaker 01:
Putting that all aside, Your Honors, even if, assuming the existence of a BAC report, that that BAC report would have been favorable to Mr. Bradford, that it would have showed that his blood alcohol content was .497,

[00:16:09] Speaker 01:
Even assuming that, the evidence here of his premeditation and deliberation is still undeniable.

[00:16:16] Speaker 01:
Proving intoxication is just the first step.

[00:16:19] Speaker 01:
It's not the end of the inquiry.

[00:16:21] Speaker 01:
And I believe the district court was under the misapprehension that intoxication is the end of the inquiry.

[00:16:26] Speaker 03:
I want to go back to the question we just were talking about because what the declaration says, you know, it goes through each of the models and the, you know, the most favorable one in the sense that it's the one that's within the realm of plausibility is the .497.

[00:16:45] Speaker 03:
And he says that at 6.30 a.m.

[00:16:51] Speaker 03:
that would have been

[00:16:54] Speaker 03:
a .227 at the same rate.

[00:16:59] Speaker 03:
And so therefore that is a clear basis for saying that at the time of the draw, which was shortly after 6.30 a.m., that it would have had a measurable amount and that it then could have done the extrapolation.

[00:17:11] Speaker 03:
So I just don't see why

[00:17:14] Speaker 03:
It's speculative to say that at 6.30 a.m., there would have been enough to estimate the alcohol at the time of the murder.

[00:17:24] Speaker 01:
I understand, Your Honor.

[00:17:26] Speaker 01:
I'm not disputing that Dr. Cota conducted these extrapolations based on these three different scenarios.

[00:17:32] Speaker 01:
But if you look at the last paragraph of his declaration, it says,

[00:17:36] Speaker 01:
had that blood sample been tested and contained even a minimal measurable quantity of alcohol, a serum alcohol level at the time of the offense could have been estimated with a reasonable degree of reliability using PharmaOak.

[00:17:50] Speaker 01:
co-kinetic calculations.

[00:17:53] Speaker 01:
So I think that it's still far too speculative.

[00:17:56] Speaker 01:
Dr. Koda?

[00:17:58] Speaker 03:
Well, of course he's saying he doesn't know exactly what it is, but he's saying this is the amount of alcohol that goes in his system.

[00:18:05] Speaker 03:
This is how it dissipates.

[00:18:07] Speaker 03:
And these are the rates at which it dissipates.

[00:18:09] Speaker 03:
And at 6.30 a.m., under all these scenarios, here's what he would have had.

[00:18:13] Speaker 03:
And if it had been measurable, I would have been able to say.

[00:18:17] Speaker 03:
But he's also provided the basis for saying why it is measurable.

[00:18:21] Speaker 03:
And it's not speculative.

[00:18:23] Speaker 03:
It's hypothetical.

[00:18:25] Speaker 03:
It's circumstantial.

[00:18:26] Speaker 03:
But it's a reasoned line of argument you can follow.

[00:18:29] Speaker 01:
I understand, Your Honor.

[00:18:30] Speaker 01:
I don't want to belabor the point.

[00:18:32] Speaker 01:
And notwithstanding Dr. Cota's estimates here, he did give three different ones.

[00:18:41] Speaker 01:
And both Mr. Bradford and the district court relied on the most favorable one, which is still... Does everyone agree?

[00:18:49] Speaker 03:
Was it disputed that the other two are impossible because they would, even for the heaviest drinkers, would have resulted in fatality?

[00:18:58] Speaker 01:
I think that the district court said that that's a near fatal amount and even point four nine seven is is would be considered a medical emergency.

[00:19:05] Speaker 02:
Even if you take what my colleague says though as I read the record Mr. Cohen brought the issue of intoxication and premeditation to the jury and said intoxication could have affected his ability to premeditate and deliberate and if you concluded that it could only convict for second degree murder.

[00:19:26] Speaker 02:
So this is not

[00:19:28] Speaker 02:
a hypothetical that never got into the trial the jury was presented with evidence about intoxication now how much we've talked about that but the reality is the concept of the defendant being intoxicated was clearly presented to the jury

[00:19:46] Speaker 02:
The jury was clearly told that premeditation was necessary for first degree murder.

[00:19:51] Speaker 02:
They could find second degree murder and they didn't do that.

[00:19:54] Speaker 02:
So what do we do with that?

[00:19:56] Speaker 02:
How does that affect our analysis?

[00:19:57] Speaker 01:
So your honor, yes, the jury was presented with evidence of intoxication and as I've said, the

[00:20:06] Speaker 01:
The easiest way for this court to decide this case is that even assuming there was some sort of BAC report, some scientific concrete evidence of his intoxication was presented at trial, there could have been dueling experts saying there's no way that is...

[00:20:21] Speaker 01:
I apologize.

[00:20:22] Speaker 01:
There could have been testimony rebutting that argument by the district attorney that even with this blood alcohol level, he was able to intentionally do the acts that resulted in Ms.

[00:20:40] Speaker 01:
Cokes' murder here.

[00:20:41] Speaker 01:
As Mr. Rodford said in his own words, he thought about it.

[00:20:44] Speaker 01:
He had a motive for this killing.

[00:20:46] Speaker 01:
He was thinking about Ms.

[00:20:48] Speaker 01:
Cokes and thought to himself, what if she lives and identifies me for this, you know, rape that I've just committed against her?

[00:20:55] Speaker 01:
And so before he returned to her apartment, he armed himself with a knife and he saw her there.

[00:21:00] Speaker 01:
She was still alive.

[00:21:01] Speaker 01:
And he made sure she was dead in his own words and used those three different ways of killing her.

[00:21:06] Speaker 01:
And faced with that evidence, the jury would have had to

[00:21:11] Speaker 01:
disregard Mr. Bradford's own words, disregard the evidence in this case, and look to the evidence of intoxication and say, well, he had a blood alcohol content of whatever it may be, and that means his intent was negated.

[00:21:26] Speaker 01:
But as I previously stated, showing intoxication is just the first step.

[00:21:32] Speaker 01:
And the jury instruction talks about that.

[00:21:33] Speaker 01:
It says, if you believe that the defendant is intoxicated, then you must consider that.

[00:21:39] Speaker 01:
and whether that intoxication negated the intent or prevented him from forming that intent.

[00:21:46] Speaker 01:
And there's ample evidence of premeditation deliberation in this case, as I've already talked about.

[00:21:52] Speaker 02:
I mentioned a case earlier about strangulation and that being per se

[00:21:58] Speaker 02:
premeditation.

[00:22:00] Speaker 02:
How does that factor in with the intoxication issue?

[00:22:06] Speaker 02:
Is that overrided?

[00:22:07] Speaker 02:
Is it a presumption?

[00:22:09] Speaker 02:
What is it?

[00:22:10] Speaker 01:
So as this court found in Hernandez v. Chappell, which was a de novo case, there was no ad-pideference in that case,

[00:22:16] Speaker 01:
The fact that the defendant strangled his victims, that there was bruising around the neck, shows that the killing was intentional.

[00:22:25] Speaker 01:
It wasn't a heat of passion.

[00:22:27] Speaker 01:
It was deliberate and premeditated.

[00:22:30] Speaker 01:
And there's another case

[00:22:37] Speaker 01:
Oh, it's Claiborne versus Lewis as well, I believe is a non-ADPA case where this court reviewed DeNovo.

[00:22:45] Speaker 01:
There was strangulation in that case as well.

[00:22:50] Speaker 01:
And so all of that evidence, and aside from the strangulation and the methods of killing, Mr. Bradford had a lucid recollection

[00:23:00] Speaker 01:
of the two separate times that he was in Ms.

[00:23:04] Speaker 01:
Cokes' apartment, the first time when he raped, beat, and sodomized her, and the second time when he went back and killed her, and what he did, he remembered where items were in her apartment.

[00:23:15] Speaker 01:
He had the wherewithal to take some items with him.

[00:23:18] Speaker 01:
He had the presence of mind to lock the door behind him.

[00:23:21] Speaker 01:
He remembers all of these key details, what she was wearing, the order of his assault on her.

[00:23:26] Speaker 01:
And so all of that combines to,

[00:23:30] Speaker 01:
undermine the district court's finding of prejudice in this case, and clearly a fair-minded jurist could look at the enormity, the enormous amount of this evidence of premeditation deliberation, and faced with that evidence, there is no reasonable probability Mr. Bradford would have received a more favorable result.

[00:23:50] Speaker 01:
had this BAC report been introduced or relatedly a diminished actuality defense have been presented by Mr. Bradford's defense counsel.

[00:24:04] Speaker 02:
Can I ask you a separate question?

[00:24:06] Speaker 02:
We've been mainly talking about claims four and eight, but do you agree that claims eight, C through G, and 13 through 29 need to be remanded for reconsideration?

[00:24:18] Speaker 02:
It's those people with the penalty phase, right?

[00:24:19] Speaker 01:
Yes, your honor.

[00:24:20] Speaker 01:
So part of our request for relief from this court is to not only reverse the district court's judgment, but to remand with directions, specific directions, to adjudicate all remaining claims.

[00:24:33] Speaker 01:
As this court knows, this is the second time this case has been before this court.

[00:24:36] Speaker 01:
And for the sake of efficiency and conserving judicial resources, we would ask that the remainder of Mr. Bradford's claims be adjudicated.

[00:24:44] Speaker 01:
And if there are no further questions, your honor, I will reserve the remainder of my time for rebuttal.

[00:24:48] Speaker 01:
Thank you.

[00:24:57] Speaker 04:
Thank you, Your Honor.

[00:25:05] Speaker 04:
If it may please the Court, Catherine Farkas on behalf of Petitioner Mark Bradford.

[00:25:26] Speaker 00:
As Judge Smith indicated, the jury was presented with the concept of intoxication.

[00:25:33] Speaker 00:
The evidence, however, was woefully insufficient.

[00:25:37] Speaker 00:
In the prosecutor's guilt-based closing, she argued, quote, we know the defendant had something to drink, but there is no evidence whatsoever that he was intoxicated.

[00:25:48] Speaker 02:
Well, that may be the prosecutor, but Mr. Cohen was pretty fulsome about his presentation, right, about how much intoxication was involved.

[00:25:58] Speaker 00:
No, Your Honor.

[00:25:59] Speaker 00:
And the ineffective assistance of counsel goes to both the defense counsel's failure to obtain the BAC results, which would have been objective scientific evidence, the amount of intoxication, and the... Okay, let's work it through here.

[00:26:15] Speaker 02:
I'm a member of the jury, okay?

[00:26:17] Speaker 02:
And you make your claim.

[00:26:21] Speaker 02:
You've got the doctor that talks about extrapolating.

[00:26:24] Speaker 02:
You've got arguably three different levels of intoxication, which would have been fatal, the least fatal one of four or whatever it was.

[00:26:36] Speaker 02:
It's all speculation.

[00:26:38] Speaker 02:
The sample was taken 13 hours later than the event occurred.

[00:26:46] Speaker 02:
Who knows?

[00:26:47] Speaker 02:
what he would have had in his system at that point.

[00:26:50] Speaker 02:
So it's all speculation.

[00:26:52] Speaker 02:
But the concept of intoxication was there.

[00:26:55] Speaker 02:
But then you have all these confessions, especially the fourth one, where he talked very specifically about what he intended to do, why he intended to do it.

[00:27:06] Speaker 02:
He had the strangulation, which, as we discussed, is per se premeditating.

[00:27:12] Speaker 02:
I understand you got a tough burden.

[00:27:13] Speaker 02:
You're a good lawyer.

[00:27:14] Speaker 02:
You work with this stuff.

[00:27:15] Speaker 02:
But we're talking about EDPA here.

[00:27:18] Speaker 02:
EDPA is highly deferential.

[00:27:19] Speaker 02:
And what we have to find out is whether the California Supreme Court was just unreasonable in finding that it could have been the way that the state trial court found it.

[00:27:32] Speaker 02:
And I'm struggling with that.

[00:27:33] Speaker 02:
So help me why, you know, don't just say intoxication.

[00:27:37] Speaker 02:
The jury heard that.

[00:27:39] Speaker 02:
Tell me why what you're talking about satisfies EDPA.

[00:27:44] Speaker 00:
And the parties agreed to hold off on arguing on any briefing as to whether Lope or Bright modifies the EDPA.

[00:27:54] Speaker 02:
Okay, let's take Lope or Bright.

[00:27:56] Speaker 02:
You're not really serious about that, right?

[00:27:58] Speaker 00:
It is an issue that is currently being briefed in multiple cases in this court.

[00:28:03] Speaker 03:
Well, you have three pages in your brief on that, and then you say, if the panel is interested in this, we've request supplemental briefing.

[00:28:11] Speaker 03:
You don't get to ask and take by right supplemental briefing.

[00:28:15] Speaker 03:
You were given a brief, you were given pages, you made the argument in the three pages, and you don't get to ask for more.

[00:28:24] Speaker 00:
Understood, Your Honor.

[00:28:26] Speaker 00:
I will address why EDPA, as it is currently interpreted... Let's assume for our discussion that Loper-Brite doesn't help you.

[00:28:33] Speaker 00:
Understood.

[00:28:35] Speaker 00:
And the answer, Your Honor, it's important that we disaggregate.

[00:28:39] Speaker 00:
Much of the state's argument was focused on intent, but the issue here is the difference between second-degree murder and first-degree murder.

[00:28:47] Speaker 00:
Intent is required for both.

[00:28:51] Speaker 00:
to prove, to establish first-degree murder.

[00:28:53] Speaker 00:
In this case, unlike Hernandez, which was a felony murder conviction, in this case requires separate elements of premeditation, deliberation, and intent.

[00:29:04] Speaker 00:
And the area where perhaps the intoxication, and specifically the severe intoxication that existed but was not presented to the jury.

[00:29:13] Speaker 02:
Well, that's what you say.

[00:29:14] Speaker 02:
But again, what's different here is you've got all these confessions.

[00:29:19] Speaker 02:
where he indicated, you know, well, I did all this to her, but I don't think she's dead.

[00:29:25] Speaker 02:
I want to kill her.

[00:29:26] Speaker 02:
45 minutes later, he goes back and he strangles her.

[00:29:30] Speaker 02:
He stabs her.

[00:29:31] Speaker 02:
He brings that special knife and stabs her in the heart.

[00:29:35] Speaker 02:
This is premeditated stuff.

[00:29:36] Speaker 02:
Unless you can show me by scientific evidence, he couldn't have thought that.

[00:29:41] Speaker 02:
And I'm struggling with that because at best, the doctor's testimony is speculation.

[00:29:48] Speaker 02:
And in his best circumstances, he's got something that even he can see that he probably would have been dead because of the intoxication.

[00:29:56] Speaker 02:
It just doesn't add up to me.

[00:29:58] Speaker 02:
And if it doesn't add up under EDPA, we have to tip our cap to the California Supreme Court, don't we?

[00:30:05] Speaker 00:
Let me take the question in this order.

[00:30:09] Speaker 00:
First, let me discuss why premeditation and deliberation are different elements and deliberation is the one most impacted, and then let me return to the fact that Dr. Kota's declaration is not speculation.

[00:30:24] Speaker 02:
It's not speculative?

[00:30:25] Speaker 00:
Yes, you are.

[00:30:25] Speaker 02:
And why do you say that?

[00:30:27] Speaker 00:
The reason that the defense is now in the position, Mr. Bradford is in the position of having to use the only scientific method available, which is to take the quantity of alcohol that Mr. Bradford consumed and calculate what his blood alcohol was based on a conservative estimate.

[00:30:49] Speaker 02:
But again, that's an estimate.

[00:30:51] Speaker 00:
It's, it's an estimate.

[00:30:53] Speaker 00:
Yes, your honor.

[00:30:54] Speaker 02:
And if I understand correctly, there's no evidence that shows that the prosecution intentionally failed to do the right test or intentionally failed to deliver whatever the test would have been to the defense.

[00:31:08] Speaker 02:
Is that correct?

[00:31:09] Speaker 00:
That is incorrect, Your Honor.

[00:31:10] Speaker 02:
It is incorrect.

[00:31:11] Speaker 00:
So perhaps I'll start with that and return to the other questions.

[00:31:15] Speaker 00:
There is not only the evidence, as we all know, the reason that blood testing facilities even exist to be done in a police station at 6.30 in the morning is blood alcohol.

[00:31:26] Speaker 00:
The officers who interrogated Mr. Bradford first discussed his intoxication, described the fact they believed his intoxication had a role in the crime.

[00:31:36] Speaker 00:
They then withdrew his blood into that vacutainer containing the solution for toxicology testing.

[00:31:45] Speaker 00:
And afterwards, in the next interrogation outside of Edwards, Detective Hooks said, the amount you drank will be considered in determining whether it was first or second degree murder.

[00:31:58] Speaker 02:
Of course.

[00:32:00] Speaker 02:
So it's tautology.

[00:32:01] Speaker 02:
I mean, that doesn't tell him anything.

[00:32:04] Speaker 00:
That tells you that the police were well aware that the amount that they were the police, they know about.

[00:32:10] Speaker 02:
the elements of a crime.

[00:32:12] Speaker 02:
But that doesn't tell us that the prosecutor or the state intentionally failed to deliver something that they knew was inculpatory to them, to the defense.

[00:32:25] Speaker 02:
The idea that he would say that intoxication plays a role in proving the elements of a crime, that doesn't say anything.

[00:32:33] Speaker 00:
Brady does not have an intent element But but in any case in here to the extent you need to understand what they were thinking They both understood the exculpatory nature as detective hooks said and they understood.

[00:32:47] Speaker 03:
Mr Bradford was intoxicated What establishes that a BAC test was in fact done because that critical?

[00:32:54] Speaker 03:
Allegation in the state habeas petition was alleged on information and belief Why aren't we obligated under Richter to?

[00:33:03] Speaker 03:
to consider whether the California Supreme Court reasonably concluded that that allegation was insufficiently supported factually.

[00:33:16] Speaker 00:
The only reason we do not know whether a blood alcohol test was done is the state has refused to answer the question.

[00:33:23] Speaker 00:
The states often attach exhibits to informal briefings, certainly when this case returned to the district court would be another opportunity under Coleman prejudice for fact development.

[00:33:35] Speaker 03:
The reason we don't know that... Just looking at what the California Supreme Court did under ATA and there you filed something and the state didn't respond

[00:33:45] Speaker 03:
And so whether or not the state could have said something is not really relevant.

[00:33:49] Speaker 03:
What's relevant is four corners of what the California Supreme Court reviewed and what you put in front of them.

[00:33:54] Speaker 03:
What, in terms of what was put in front of them, establishes that the BAC was done and makes it unreasonable for them to have concluded perhaps that it was not, that that had not been established, that it was done.

[00:34:08] Speaker 00:
Your Honor, the evidence of Mr. Bradford's BAC existed as soon as his blood was drawn into the gray stopper vial.

[00:34:16] Speaker 00:
That vial contained evidence of Mr. Bradford's BAC.

[00:34:20] Speaker 00:
So the only two plausible alternatives suggested by the state... And that information was never provided to the defense?

[00:34:27] Speaker 00:
The blood was never made available.

[00:34:31] Speaker 00:
As the state says, it was used up for blood testing.

[00:34:34] Speaker 02:
I understand, but what they had, they gave it to you, right?

[00:34:38] Speaker 00:
The state has never said that's the case.

[00:34:42] Speaker 03:
Okay.

[00:34:42] Speaker 03:
Well, we know that serology testing was done and we know from the cross-examination by Mr. Cohen that he clearly seemed to be aware of both the serology results and then there was also at the same time some kind of saliva testing that was done.

[00:34:59] Speaker 03:
So he was aware of those.

[00:35:02] Speaker 03:
But what establishes that

[00:35:04] Speaker 03:
a BAC test was done.

[00:35:07] Speaker 03:
Now, your first answer was that it doesn't matter whether a BAC test was done.

[00:35:13] Speaker 03:
But how was it established in the state habeas petition that the BAC test was done?

[00:35:19] Speaker 00:
To the extent that the state court concluded that it was not done, that would be

[00:35:26] Speaker 00:
unreasonable fact-finding because it would have done without.

[00:35:29] Speaker 03:
Why is that unreasonable from this record?

[00:35:31] Speaker 00:
Because unreasonable to conclude that without the state averring one way or another whether the testing was done for the California

[00:35:41] Speaker 00:
State court to conclude without a hearing without a response from the state that the test was not done would be unreasonable fact-finding But with respect counsel, I think you've done what the district judge did here You're you're doing this de novo trying it as the original trier of fact.

[00:35:58] Speaker 02:
That's not what we do We have the state trial court then we have the California courts of appeal the California Supreme Court and the question is whether it was unreasonable

[00:36:09] Speaker 02:
for the California Supreme Court to have concluded that it was okay what was done.

[00:36:14] Speaker 02:
Right?

[00:36:15] Speaker 00:
Yes, Your Honor.

[00:36:16] Speaker 02:
And that's under EDPA.

[00:36:17] Speaker 00:
And for the supreme, because the only two alternatives involved that are

[00:36:24] Speaker 00:
are suggested by the evidence in any way, are that either the blood alcohol was done.

[00:36:29] Speaker 00:
The prosecutor, as she said, standard tests were done.

[00:36:33] Speaker 00:
And we know standard testing of a gray stoppered vial includes toxicology.

[00:36:38] Speaker 00:
Either the test was done but never provided.

[00:36:40] Speaker 00:
It was not in trial counsel's file, and neither side presented.

[00:36:44] Speaker 02:
Let's say it was.

[00:36:44] Speaker 02:
I mean, again, you're doing a good job.

[00:36:48] Speaker 02:
You have to do what you have to do.

[00:36:49] Speaker 02:
But we get hammered by the Supreme Court

[00:36:53] Speaker 02:
for failure to follow EDPA.

[00:36:55] Speaker 02:
And what we're dealing with here is, you know, you might have done it differently as a trial judge.

[00:37:02] Speaker 02:
You might have been doing something different at the California Supreme Court.

[00:37:06] Speaker 02:
But the fact that something wasn't provided, I thought it was provided, but the reality is it may have been the wrong test.

[00:37:11] Speaker 02:
But the fact is, it is reasonable, is it not, for the California Supreme Court to have said, yeah, that's okay.

[00:37:18] Speaker 02:
And if they say that, how can we overturn that?

[00:37:23] Speaker 00:
It is not reasonable to engage in fact-finding without evidence, without affording Mr. Bradford an ability to get an answer to the question the state won't answer, which is, what was the BAC?

[00:37:33] Speaker 00:
And if the LAP does not have it, why not?

[00:37:36] Speaker 03:
But the facts we know are that, taken from what's in the materials, that it was supposed to be a DNA test.

[00:37:46] Speaker 03:
It was in fact drawn into a vial that had the solution for BAC and serology results were done.

[00:37:53] Speaker 03:
That's what we have.

[00:37:54] Speaker 03:
Those are the facts that we know.

[00:37:56] Speaker 03:
How does that add up to a BAC test was done?

[00:38:00] Speaker 00:
I would ask that you carefully review the transcript of the communications with the

[00:38:09] Speaker 00:
district attorney.

[00:38:10] Speaker 00:
While it is a little bit confusing, she does not say that it was drawn for DNA testing.

[00:38:15] Speaker 00:
She does refer to a purple vial.

[00:38:18] Speaker 03:
You said the instruction was to use a purple vial, and under your own materials, the purple vial means DNA testing.

[00:38:25] Speaker 00:
And had an appropriate fact finding occurred in the state court, questions uniquely known to the state would be available to this court, including what instruction, who gave an instruction to you?

[00:38:38] Speaker 03:
But the California Supreme Court is entitled, and under Richter, we have to look at what arguments they could reasonably have read

[00:38:46] Speaker 03:
to reach the conclusion.

[00:38:48] Speaker 03:
And one argument is that factually you didn't support the allegation that a BAC test was done.

[00:38:55] Speaker 03:
And if they reached that conclusion, would that have been reasonable?

[00:38:59] Speaker 03:
And given the bare facts here, getting to a BAC having been done is speculative.

[00:39:05] Speaker 03:
And you recognized it because it was pleaded on information and belief, because it wasn't enough.

[00:39:11] Speaker 00:
Even under Richter, even under EDPA, the California Supreme Court has to engage in a reasonable fact-finding process.

[00:39:22] Speaker 00:
In this case, there's no case for that.

[00:39:26] Speaker 02:
And who determines that under EDPA?

[00:39:30] Speaker 02:
Do we, as a panel, have the ability to say, you know, if I'd been on the Supreme Court, I'd have decided it differently.

[00:39:39] Speaker 02:
Or do we get to say,

[00:39:41] Speaker 02:
with fair-minded jurists and so on, could they have, looking at this evidence, concluded to what they did?

[00:39:47] Speaker 00:
We have to look at what the California Supreme Court did and whether it is a reasonable application of Brady and Strickland and whether it is a reasonable application, a reasonable fact-finding.

[00:39:59] Speaker 00:
In this case,

[00:40:01] Speaker 00:
a Brady claim, inherently refers to suppression of evidence.

[00:40:05] Speaker 00:
Mr. Bradford produced all of the evidence available to him, and it strongly indicates that there was, well, we know there was BAC evidence because it was in the file, it was either used.

[00:40:16] Speaker 03:
Can I ask you a factual question on that?

[00:40:18] Speaker 03:
Because you said, I think a few minutes ago, that it was used up.

[00:40:21] Speaker 03:
But I thought there was some sample that was destroyed in 1993.

[00:40:30] Speaker 03:
Is that the same gray stopper one that survived?

[00:40:37] Speaker 03:
So did some of it remain all the way to 93?

[00:40:40] Speaker 03:
Some of it was used for testing and some remained that would have been available?

[00:40:43] Speaker 03:
What is the record show on that?

[00:40:45] Speaker 00:
The record does not.

[00:40:46] Speaker 00:
Again, information uniquely available to the state that they choose not to provide to this court or to Mr. Bradford.

[00:40:53] Speaker 00:
But the answer, Your Honor, is that the prosecutor's statements, when she was requesting additional blood, seemed to indicate that the blood was consumed for testing.

[00:41:03] Speaker 00:
We do also have the sheet showing distrust.

[00:41:07] Speaker 03:
What statement is that?

[00:41:08] Speaker 03:
Is that the statement at the hearing to get a second DNA?

[00:41:11] Speaker 00:
Yes, Your Honor.

[00:41:13] Speaker 00:
suggests that she needs additional blood, not just because of the color of the vial, but because the test that the blood was consumed.

[00:41:21] Speaker 00:
On the other hand, we do also know that the state improperly destroyed the vial.

[00:41:28] Speaker 00:
So we don't have a way.

[00:41:29] Speaker 00:
It's uniquely known to the state, much like its own post-conviction.

[00:41:33] Speaker 03:
But if it was used up in the testing, then how was any evidence destroyed in 1993?

[00:41:39] Speaker 00:
Again, we just don't know how much blood remained in that vial at the time.

[00:41:43] Speaker 00:
But if there was blood that remained and it was sufficient to do a toxicology test at that time, given the preservation and assuming proper storage, that would have been additional blood destroyed in 1993.

[00:41:58] Speaker 02:
It just strikes me.

[00:41:59] Speaker 02:
I mean, again, you have a job to do, and I understand that.

[00:42:03] Speaker 02:
The test was taken 13 hours later.

[00:42:05] Speaker 02:
Whatever alcohol there was in the blood would have been hugely dissipated by then.

[00:42:11] Speaker 02:
You've got the testimony of his friend, he got his own views, but the concept of intoxication lowering the premeditation factor was presented to the jury.

[00:42:25] Speaker 02:
They knew that he claimed to be intoxicated, hugely intoxicated, and yet they didn't buy it.

[00:42:31] Speaker 02:
How does that factor into our decision?

[00:42:34] Speaker 00:
Thank you.

[00:42:35] Speaker 00:
I did want to return to the difference between second and first degree.

[00:42:38] Speaker 02:
OK.

[00:42:38] Speaker 00:
The instructions provided to the jury

[00:42:41] Speaker 00:
Regarding second-degree murder and this is the instruction this was the strategy that trial counsel used as you know He simply inadequately presented it in part because he had no BAC But he did ask this court asked the jury to consider Mr.. Bradford's intoxication when it considered the instruction and the instruction is that

[00:43:05] Speaker 00:
A mere unconsidered and rash impulse, even though it include an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree."

[00:43:19] Speaker 00:
So the jury was charged with comparing that instruction to the one on deliberation.

[00:43:26] Speaker 00:
And deliberation requires

[00:43:30] Speaker 00:
that the killing be, quote, a result of careful thought and weighing of considerations for and against the proposed course of action.

[00:43:39] Speaker 00:
So it wasn't merely finding intent to kill.

[00:43:42] Speaker 00:
It wasn't merely finding premeditate that he thought about it in some way beforehand.

[00:43:47] Speaker 00:
But the jury had to weigh the difference between a rash impulse

[00:43:53] Speaker 00:
and the careful thought and the weighing of considerations.

[00:43:57] Speaker 02:
And they had the fourth, if you will, confession in which he carefully said after 45 minutes, you know, this woman's not dead yet.

[00:44:07] Speaker 02:
She's going to rat on me.

[00:44:08] Speaker 02:
I'm going to go down and finish her off.

[00:44:10] Speaker 02:
So he takes a butcher knife, a serrated butcher knife.

[00:44:15] Speaker 02:
He takes something to strangle her with.

[00:44:17] Speaker 02:
He goes down there.

[00:44:18] Speaker 02:
She's gurgling in her own blood.

[00:44:21] Speaker 02:
He strangles her.

[00:44:23] Speaker 02:
And then he stabs her in the heart several times.

[00:44:26] Speaker 02:
45 minutes later, the jury had all that.

[00:44:31] Speaker 02:
So whatever the blood test might have shown, in effect, haven't they already taken into account?

[00:44:39] Speaker 02:
They would have assigned whatever they did to the intoxication element, but they overwrote it based upon the fourth, if you will, confession.

[00:44:50] Speaker 00:
know, Your Honor, they simply did not have that evidence of intoxication.

[00:44:54] Speaker 00:
The prosecutor was able to argue twice that there was no evidence Mr. Bradford was feeling anything from what he was drunk.

[00:45:03] Speaker 02:
But let's say he says, you know, the four point whatever, I was that intoxicated, I was just out of my mind.

[00:45:12] Speaker 02:
And then he has his confession and the jury weighs the two and says, you know, I don't think so.

[00:45:18] Speaker 00:
But that's not what happened.

[00:45:19] Speaker 00:
The jury did not have information on the intoxication.

[00:45:22] Speaker 00:
They did not have testimony from Craig McCorrisen, who saw him huddled under a blanket in the hallway, slurring his words, seeming high.

[00:45:31] Speaker 00:
They did not have testimony about the effect of intoxication.

[00:45:35] Speaker 00:
They certainly did not have the testimony we have from Dr. Foster and Dr. Marikangas about

[00:45:40] Speaker 00:
the combined effect of Mr. Bradford's pre-existing brain damage from when he fell from a moving truck as a child.

[00:45:49] Speaker 00:
and the combined effect of that on the severe intoxication they had here.

[00:45:53] Speaker 00:
They neither knew about the brain damage nor the severity of the intoxication when they weighed.

[00:45:59] Speaker 00:
And they had an instruction to resolve doubts between first and second degree murder in favor of returning a verdict of second degree murder.

[00:46:09] Speaker 00:
So if they were...

[00:46:11] Speaker 00:
convinced it was a rash impulse, they had to return a verdict of second-degree murder.

[00:46:16] Speaker 00:
If even one juror had a reasonable doubt as to first-degree murder, that would have been a more favorable outcome in this case.

[00:46:28] Speaker 02:
But does that cut in favor or against your position?

[00:46:33] Speaker 02:
I'm not sure it helped you.

[00:46:36] Speaker 00:
Of course it does.

[00:46:38] Speaker 00:
The burden was with the prosecution.

[00:46:41] Speaker ?:
Right.

[00:46:41] Speaker 00:
if one juror considered the amount of intoxication.

[00:46:45] Speaker 00:
And intoxication is something that no doubt some of the jurors were familiar with.

[00:46:51] Speaker 00:
Oh, sure.

[00:46:51] Speaker 00:
And they understood that people sometimes act under a rash impulse when intoxicated.

[00:46:57] Speaker 00:
And the parts of the confession that you point to, we look at the fourth confession after Mr. Bradford was finally sober.

[00:47:05] Speaker 00:
But I think it's important to understand the district court correctly found that aspects of the confession were suggested to Mr. Bradford.

[00:47:14] Speaker 00:
And he did adopt them.

[00:47:16] Speaker 00:
He didn't remember putting something around her neck or what it was.

[00:47:21] Speaker 00:
So there's no testimony about him bringing that.

[00:47:23] Speaker 02:
But that's all true.

[00:47:24] Speaker 02:
But Judge Hatter had a lot of information.

[00:47:27] Speaker 02:
But so did the California Supreme Court.

[00:47:29] Speaker 02:
And the California Supreme Court, weighing it all together, concluded that it was a reasonable

[00:47:35] Speaker 02:
decision on the part of the jury and the trial court, right?

[00:47:44] Speaker 00:
It is hard to understand what their fact-finding was, given the summary denial, but it was unreasonable to conclude.

[00:47:53] Speaker 02:
And again, then we get back to EPPA again.

[00:47:55] Speaker 02:
You want to convince us, like you convinced Judge Hatter, that we can de novo look at this and say, well, I don't know whether we would agree with that.

[00:48:04] Speaker 02:
But that's not the standard.

[00:48:06] Speaker 02:
It's not the standard.

[00:48:07] Speaker 02:
And under EDPA, as I said, Supreme Court repeatedly tells us what was before the California Supreme Court in this case was a reasonable decision.

[00:48:19] Speaker 02:
Could they find it?

[00:48:20] Speaker 02:
And they did.

[00:48:22] Speaker 00:
There's no case holding in a Brady claim that a summary denial, essentially denial of the claim without giving the defendant an ability for fact finding allows, prevents the federal court from addressing the claim again without fact finding

[00:48:41] Speaker 00:
where the state continues to suppress the evidence.

[00:48:45] Speaker 00:
The state will not answer the question of what his BAC is and it may be in their possession because we have never been afforded fact-finding on this issue.

[00:48:53] Speaker 02:
You speculate they have that but you have no proof of it, right?

[00:48:57] Speaker 00:
It's the nature of suppression.

[00:49:00] Speaker 00:
that we, that we, Mr. Bradford has, has presented evidence available to him, but yes, to the, the blood alcohol result, to the extent there's a paper that was suppressed, he has no way to present that.

[00:49:14] Speaker 02:
From your perspective, the negative pregnant is what helps you.

[00:49:17] Speaker 00:
Well, it doesn't just help.

[00:49:19] Speaker 00:
It hurts in that the case was summarily denied, and no one has afforded Mr. Bradford fact-finding.

[00:49:26] Speaker 00:
And the state does not deny that it has a BAC result.

[00:49:31] Speaker 00:
And so that... You asked him and they said, we've got it?

[00:49:35] Speaker 00:
We have not been afforded an opportunity.

[00:49:39] Speaker 02:
I didn't know any of that.

[00:49:41] Speaker 00:
In briefing, over and over, and we point to it in the papers, in the post remand briefing,

[00:49:48] Speaker 00:
Extremely clearly the brief said that this case this claim could be decided on the evidence presented by mr. Bradford or they could have a hearing we have always invited a hearing and and specifically the briefing says that the state refuses to state what the BAC was or ever that it never existed and The state responds to that with silence.

[00:50:13] Speaker 00:
So yes, we have absolutely asked the negative pregnant is if they've done

[00:50:18] Speaker 02:
If you ask it and they don't answer it, then they must be admitting it.

[00:50:22] Speaker 00:
I'm not saying they must be, but I'm saying that to deny a Brady claim in a way that just permits the state to continue suppressing is to misapply Brady.

[00:50:36] Speaker 00:
And to be clear, the state has supplemented the record with other information.

[00:50:42] Speaker 00:
In fact, as you know, the recordings of the confessions were not in the record.

[00:50:48] Speaker 00:
So there are declarations from the request for judicial notice in this case and in the previous case before this court.

[00:50:57] Speaker 00:
The assigned Deputy Attorney General sent an email to the LAPD and said, could I get a copy of those recordings?

[00:51:04] Speaker 00:
She got one, and she presented it to the court.

[00:51:06] Speaker 00:
There are many, many cases in which... Which court?

[00:51:09] Speaker 00:
To this court, the request for judicial notice in this case, and it's even more detailed in the last... But did the state court have copies of those recordings?

[00:51:19] Speaker 00:
The recordings themselves, I do not know.

[00:51:23] Speaker 00:
I do not know whether the recordings, the fourth recording was played to the jury.

[00:51:31] Speaker 00:
I do not know from the record, I do not see that the state had the other three recordings.

[00:51:36] Speaker 02:
And that's of course what we're looking at.

[00:51:37] Speaker 02:
What did the state trial court have?

[00:51:41] Speaker 00:
Yes, I understand, but what I'm saying too, and in terms of suppression, we don't look just to what the state trial court had.

[00:51:49] Speaker 00:
And we also, in terms of deficient performance by trial counsel, of course, trial counsel also failed to obtain that PAC.

[00:51:58] Speaker 00:
failed to call the witnesses that would have testified persuasively, who would have supported the argument, which is that this was a rash impulse and not the result of careful thought and weighing of considerations for and against a proposed course of action.

[00:52:12] Speaker 04:
Counsel, I have a question for you, if I may please.

[00:52:15] Speaker 04:
And I'll give you an extra minute or two if you need it, because I'm musing up some of

[00:52:23] Speaker 04:
some of your remaining time.

[00:52:25] Speaker 04:
So does your client have the burden of proving that suppressed evidence was in fact favorable?

[00:52:39] Speaker 00:
Your Honor, one of the elements of Brady is certainly that the evidence be exculpatory.

[00:52:45] Speaker 04:
Right, so that's your client's burden, correct?

[00:52:49] Speaker 00:
Yes, Your Honor.

[00:52:50] Speaker 04:
So what is the evidence that you point to in the record that shows that whatever was suppressed was favorable to your client?

[00:53:04] Speaker 00:
I would point to Mr. Beerman's statements, all of them, starting with the first statement to the police shortly after the crime where he described that Mr. Bradford was drinking whiskey and beer all day.

[00:53:17] Speaker 00:
And all of his statements, including the trial testimony, which he gave after being rattled by the prosecutor,

[00:53:26] Speaker 00:
In his trial testimony, even then, he describes an amount of alcohol that would not have been fully metabolized by the time of the blood draw at 6.30 in the morning.

[00:53:37] Speaker 00:
And certainly, Dr. Cote, there's never been anything that the state has pointed to that was erroneous about Dr. Cote's methodology.

[00:53:46] Speaker 00:
I understand the numbers are high.

[00:53:48] Speaker 03:
Mr. Bradford... I mean, do you agree that the two scenarios are essentially implausible?

[00:53:53] Speaker 03:
He'd be dead under those scenarios.

[00:53:55] Speaker 00:
No, Your Honor.

[00:53:56] Speaker 03:
At .9?

[00:53:57] Speaker 03:
Who would be alive at .9?

[00:54:00] Speaker 00:
There have been cases that were... We don't argue that the .9 is correct.

[00:54:06] Speaker 00:
We have argued that the court should accept the low end, which is the most conservative estimate, and presumably Mr. Bradford, who was an alcoholic, began drinking at age 15, and by 25 was a long-term alcoholic.

[00:54:21] Speaker 00:
Certainly, we understand that

[00:54:23] Speaker 00:
That Dr. Kota was correct to use a high end of metabolization, but there is no evidence that is inconsistent with Dr. Kota's low end estimate and the blood, any amount of, as you pointed out, a .227 was well above the amount that's detectable.

[00:54:46] Speaker 00:
There is no question here.

[00:54:48] Speaker 00:
There can be no reasonable doubt that that blood

[00:54:53] Speaker 00:
when it was preserved for toxicology testing was exculpatory to Mr. Bradford.

[00:54:57] Speaker 03:
Can I ask you a question about, just suppose hypothetically we were to reverse the grant of relief on the grounds provided by the district court.

[00:55:11] Speaker 03:
What is left for remand, just the sentencing issues at that point?

[00:55:17] Speaker 03:
There are other ineffective assistance of counsel claims in this case that ... I know he wrote in the judgment that C and G are dismissed as moot, but I don't see that they survived the first appeal.

[00:55:32] Speaker 03:
He dismissed all of eight in the prior case, and then that went up on appeal.

[00:55:38] Speaker 03:
And what was argued was essentially the portions of 8th that we now have.

[00:55:44] Speaker 03:
Everything else was gone.

[00:55:45] Speaker 03:
It's not in that opening brief.

[00:55:48] Speaker 03:
So I don't see how it was remanded.

[00:55:50] Speaker 03:
So it seems to me there's nothing left on the merits other than what he granted relief on.

[00:55:55] Speaker 03:
And then the sentencing issues just have to go back because they were never addressed.

[00:56:01] Speaker 03:
Am I wrong on that?

[00:56:03] Speaker 03:
Was there a claim where 8C and G argued

[00:56:07] Speaker 03:
in the first appeal?

[00:56:09] Speaker 00:
First of all, I want to say that I was not counsel on the case, so I don't know the subclaims by heart, and I apologize for that, Your Honor.

[00:56:25] Speaker 00:
But I do believe that any issues that were not addressed

[00:56:31] Speaker 00:
by the court would need to be remanded.

[00:56:34] Speaker 00:
Certainly the sentencing issues.

[00:56:35] Speaker 03:
He dismissed the entirety of 8 when it went up on the first appeal.

[00:56:41] Speaker 03:
And then the arguments for reversal were limited.

[00:56:45] Speaker 03:
And they seemed to just abandon C through G. And so it only went back on the rest.

[00:56:51] Speaker 03:
And now he seemed to think it was still live.

[00:56:55] Speaker 03:
But tell me if I'm reading the record wrong.

[00:56:57] Speaker 00:
My belief, and again I apologize because I wasn't on the case, but the dismissal initially was for procedural bar.

[00:57:07] Speaker 00:
So while the argument focused on these claims when it came up before, the reason it went back, it was remanded, was that Coleman

[00:57:20] Speaker 00:
Cause was established and so I believe that would apply to all of the claims that were just That judge had are dismissed for a procedural bar And I realized that I'm out of time.

[00:57:33] Speaker 00:
Thank you.

[00:57:33] Speaker 04:
If there are no further questions petitioners Thank you very much Hearing no questions from my colleagues will turn to appellant

[00:57:53] Speaker 01:
So Your Honor, I just want to make it very clear.

[00:57:59] Speaker 01:
There is nothing in the record that shows that a BAC report was ever done in this case.

[00:58:03] Speaker 01:
The state has never evaded that question.

[00:58:05] Speaker 01:
The burden is on Mr. Bradford to show that such a report was completed and it was favorable.

[00:58:12] Speaker 01:
But it is our ethical duty to disclose evidence that is in our possession.

[00:58:20] Speaker 01:
And we have all of the information that we have.

[00:58:22] Speaker 01:
the allegations in this case, the record in this case, our conversations that we've had with the prosecution establishes that no such BAC report exists.

[00:58:34] Speaker 02:
So from your perspective,

[00:58:38] Speaker 02:
That's just off the table.

[00:58:40] Speaker 02:
There's no evidence that you have it.

[00:58:42] Speaker 02:
You haven't denied it, but it's not there.

[00:58:45] Speaker 01:
Right.

[00:58:45] Speaker 01:
And Your Honor, we haven't gotten to a stage where we can litigate and investigate further and see exactly what happened.

[00:58:52] Speaker 01:
With the limited information that we have and what we've seen, we certainly wouldn't be continuing to represent to this court that no such BAC report was ever done if we actually had information to the contrary.

[00:59:04] Speaker 01:
So I just want to make that very clear.

[00:59:06] Speaker 03:
What's your answer to this issue about the ambiguity of the sample that was taken?

[00:59:14] Speaker 03:
Because the sample is taken and then everyone agrees that something related to that sample was destroyed in 1993, but there seems to be an inference, if not a statement, that it was used up and therefore there had to be another draw

[00:59:33] Speaker 03:
in that hearing, what was destroyed?

[00:59:37] Speaker 03:
Was there anything left to be destroyed?

[00:59:40] Speaker 01:
The answer to that question is I don't know.

[00:59:42] Speaker 01:
I will say that when the evidence was destroyed in this case, it wasn't just the vial of blood, it was all of the evidence.

[00:59:48] Speaker 01:
That's my understanding of it.

[00:59:49] Speaker 01:
It wasn't just that this particular vial somehow got singled out and got mistakenly destroyed.

[00:59:54] Speaker 01:
It was that the items in possession of LAPD were mistakenly destroyed, so anything that they had related to this case.

[01:00:01] Speaker 01:
That's my understanding based on the declaration of the investigator that Mr. Bradford has submitted in his discussion with one of the investigating detectives in this case.

[01:00:11] Speaker 03:
If there was enough blood left in it to still test.

[01:00:16] Speaker 01:
That's correct, Your Honor.

[01:00:17] Speaker 01:
And I will say that the bulletin that Mr. Bradford has submitted in support of his claim says that if you're doing DNA testing, you must draw two vials of blood, one with a purple stopper and one with a yellow, because there needs to be a reference sample as well as the sample that's analyzed for DNA or control, I believe.

[01:00:40] Speaker 01:
So I want to correct something that Judge Smith said earlier.

[01:00:46] Speaker 01:
I don't believe that Mr. Bradford took a belt from his apartment.

[01:00:50] Speaker 01:
I believe that that was something that was in Ms.

[01:00:52] Speaker 01:
Cokes's apartment.

[01:00:53] Speaker 01:
But he certainly armed himself with a knife prior to returning to her apartment.

[01:00:58] Speaker 01:
As far as fact finding here, there's been no unreasonable fact finding because this is a summary denial.

[01:01:03] Speaker 01:
And so everything is analyzed under D1.

[01:01:06] Speaker 01:
So as I've stated.

[01:01:08] Speaker 03:
Oh, what about?

[01:01:10] Speaker 03:
I think one of the central issues we're grappling with is what the California Supreme Court did with the set of facts it had about whether a BAC test was done.

[01:01:26] Speaker 03:
And one possible thing it could have done was to say that this collection of facts does not add up as a matter of California law

[01:01:36] Speaker 03:
to a sufficient allegation that the BAC test exists.

[01:01:42] Speaker 03:
That issue, everyone agrees we would review that for reasonableness, but is that reasonableness under D1 or D2 or does it matter?

[01:01:49] Speaker 01:
I think it's all under D1 because it is a silent denial.

[01:01:53] Speaker 03:
Looks D2-ish.

[01:01:54] Speaker 01:
Well, we would be speculating about the facts, right, but ultimately Brady materiality or any steps of Brady I think that would be D1 in the face of a silent record.

[01:02:06] Speaker 01:
It doesn't really matter how this court does it, I just want to emphasize that if there's a silent denial, we don't know what fact-finding, there was no fact-finding done.

[01:02:17] Speaker 01:
But under D1, the court could have reasonably determined that materiality wasn't shown.

[01:02:23] Speaker 01:
Assuming the existence of a favorable BAC report, assuming that BAC report was .497, that in no way would establish materiality because the evidence of his premeditation and deliberation was undeniable in this case.

[01:02:42] Speaker 01:
Mr. Bradford's counsel said the jury was instructed about premeditation and deliberation.

[01:02:49] Speaker 01:
Bradford weighed and considered the question of killing.

[01:02:52] Speaker 01:
We know that because he told us.

[01:02:54] Speaker 01:
He was in his apartment.

[01:02:55] Speaker 01:
He thought about it.

[01:02:56] Speaker 01:
She could still be alive, so I better make sure she's dead so that she does not identify me.

[01:03:02] Speaker 01:
So that was squarely established.

[01:03:08] Speaker 01:
Again, no fact-finding is necessary here because the absence of evidence does not equal relief, especially when we're looking at deficient and ineffective assistance of counsel.

[01:03:18] Speaker 01:
The Supreme Court in Dunn v. Reeve said the absence of evidence, namely here, we have no declaration from counsel shedding light on anything that he might have done here.

[01:03:27] Speaker 01:
why he chose to save Dr. Thompson for the penalty phase versus the guilt phase, whether he sought to independently test the vial of blood that he knew existed for BAC.

[01:03:42] Speaker 01:
We have none of that, and because of that, the deficient performance prong is not met.

[01:03:49] Speaker 01:
because the presumption is that council acted strategically here.

[01:03:53] Speaker 01:
In the face of absence of evidence, we can't say that he acted, that his performance was deficient.

[01:04:00] Speaker 01:
Regardless, again, I'm sorry.

[01:04:01] Speaker 02:
I want to revisit something I asked you about before, and that is about claims A, C, through G. Yes.

[01:04:07] Speaker 02:
I think before you thought that should go back, my colleague has raised a question with Mr. Bradford's council.

[01:04:15] Speaker 02:
I think they said it should, but I'm not sure.

[01:04:18] Speaker 02:
What's your position?

[01:04:19] Speaker 01:
So my position, Your Honor, and I apologize to you because I don't have as much clarity as I should because I wasn't counsel on the first case either.

[01:04:26] Speaker 01:
However, I believe that the entirety of claim eight was up on appeal on the procedural bar, and then the entirety of claim eight was remanded and for the district court to consider whether prejudice had been established within the meaning of Coleman.

[01:04:44] Speaker 01:
And so Judge Hatter dismissed the remainder of the subclaims in claim eight as moot.

[01:04:51] Speaker 01:
And then, of course, there are other claims that had previously been, I guess, they haven't even been briefed, is my understanding.

[01:04:59] Speaker 01:
There's a set of claims.

[01:05:00] Speaker 02:
What Judge Hatter didn't deal with because of the result he came to, that's still pending.

[01:05:06] Speaker 02:
Is that right?

[01:05:07] Speaker 01:
Correct.

[01:05:07] Speaker 01:
Correct, Your Honor.

[01:05:08] Speaker 01:
And I see that I'm over my time.

[01:05:10] Speaker 01:
I would just really like to wrap up briefly

[01:05:13] Speaker 01:
The state did lodge the tape confessions here.

[01:05:16] Speaker 01:
It's clear that Mr. Bradford, even in the 5 a.m.

[01:05:20] Speaker 01:
confession that wasn't admitted into evidence, is lucid, he's not confused, he's speaking clearly with the detectives, and there's no evidence whatsoever to show that he was intoxicated to the point that his premeditation and deliberation would have been negated by the alcohol that he drank that day.

[01:05:41] Speaker 01:
So the state respectfully requests that the district court judgment be reversed.

[01:05:45] Speaker 01:
And as previously mentioned, this court remand the matter with directions to adjudicate all remaining claims.

[01:05:51] Speaker 04:
Thank you, counsel.

[01:05:53] Speaker 01:
Thank you, your honors.

[01:05:58] Speaker 04:
I want to thank counsel on both sides of the case for their excellent advocacy today.

[01:06:09] Speaker 04:
But we couldn't decide these difficult cases without help from the advocates.

[01:06:17] Speaker 04:
So we thank you.

[01:06:19] Speaker 04:
This case shall now be submitted and the parties will hear from us in due course.