[00:00:00] Speaker 02:
Good morning, and may it please the court.

[00:00:02] Speaker 02:
Andrew Kennedy on behalf of Christopher Olson.

[00:00:06] Speaker 02:
I intend to reserve four minutes for rebuttal.

[00:00:08] Speaker 02:
I'll keep my eye on the clock.

[00:00:09] Speaker 03:
Thank you.

[00:00:11] Speaker 02:
In this case, Bryant Ward and Ricky Peterson lied at Chris Olson's trial, and those lies led to a host of issues that interplayed with one another to render the conviction unjust and the decision upholding it unreasonable.

[00:00:27] Speaker 02:
One or I believe two issues before the court right now.

[00:00:29] Speaker 02:
I know the court requested additional briefing on the question of the Brady issue.

[00:00:35] Speaker 02:
I'm prepared to discuss.

[00:00:36] Speaker 02:
I was going to discuss that initially, but I know that the court had noted that it was reserving judgment on a certificate.

[00:00:41] Speaker 02:
I would proceed that way.

[00:00:41] Speaker 02:
OK.

[00:00:42] Speaker 02:
Thank you, Your Honor.

[00:00:45] Speaker 02:
The government takes issue with our argument on the Brady issue because they say that suspicious synchronicity cannot be enough to establish that there was a deal.

[00:00:57] Speaker 02:
However, people in the United States are convicted every single day on a standard of beyond a reasonable doubt based on circumstantial evidence.

[00:01:09] Speaker 02:
And so to say that you need to have some sort of written, established, clear evidence of an agreement, I think, is demanding too much of a petitioner, particularly in a case like this, where there doesn't appear to have been a written agreement.

[00:01:26] Speaker 02:
However, as the case law establishes, the agreement does not need to be written.

[00:01:31] Speaker 02:
It doesn't need to be formal.

[00:01:33] Speaker 02:
If the government, the state, and the witness came to an agreement,

[00:01:38] Speaker 02:
that he was going to get a benefit for his testimony, and they ultimately delivered on it, then that should have been disclosed to the defense.

[00:01:46] Speaker 02:
And the defense should have had an opportunity to present that to the jury.

[00:01:49] Speaker 03:
Let me jump in, because I'm going to anticipate what they're going to say.

[00:01:51] Speaker 03:
So I want to hear it from you first.

[00:01:53] Speaker 03:
I think they're going to say the question here is a standard review.

[00:01:57] Speaker 03:
And the courts that were reviewing here found that there was no deal.

[00:02:04] Speaker 03:
Let's assume that's what they're going to say.

[00:02:06] Speaker 03:
Pretty confident that's what they're going to say.

[00:02:08] Speaker 03:
What is your response to that?

[00:02:09] Speaker 03:
Because you're right.

[00:02:10] Speaker 03:
In principle, you're absolutely right that if there was a deal, it needed to be disclosed, and this case really turns upside down if that's the case.

[00:02:19] Speaker 03:
But you've got to prove that there was one, and you've got to deal with the standard review.

[00:02:22] Speaker 03:
So walk me through that.

[00:02:24] Speaker 02:
Well, Your Honor's right.

[00:02:25] Speaker 02:
I think that to some extent, it's obviously incredibly difficult to prove that there was a deal when it wasn't reduced to writing.

[00:02:33] Speaker 02:
However, there are enough indicia of a deal that I believe it overcomes the standard of review.

[00:02:40] Speaker 02:
The timing, I think, is particularly suspect.

[00:02:44] Speaker 02:
Mr. Ward received his deal four days, including a weekend.

[00:02:50] Speaker 02:
So it's really two days, maybe one and a half days after Mr. Olsen was sentenced.

[00:02:56] Speaker 02:
This is someone who has been around the block many, many times.

[00:03:01] Speaker 02:
This is a prosecutor who has been around the block many, many times.

[00:03:06] Speaker 02:
And those parties would not go along with this just based on hoping that the other party does what they want them to do.

[00:03:16] Speaker 02:
I believe that is convincing evidence that there was a deal.

[00:03:20] Speaker 02:
And I believe that that renders the state court decision unreasonable.

[00:03:26] Speaker 03:
And what's the best case, if we're going to write an opinion in your favor,

[00:03:30] Speaker 03:
What's the case that we should be on that issue?

[00:03:33] Speaker 03:
What's the case that we should be saying, yep, he's right, Mr. Kennedy's right, that's the case?

[00:03:40] Speaker 03:
Because it's going to be a lot easier for us to go our way if there's a case saying to go that way.

[00:03:46] Speaker 02:
I mean, I believe that the Boyd case that the government cites

[00:03:49] Speaker 02:
establishes that because I think that the argument that the government makes is disproven by that very case.

[00:03:57] Speaker 02:
Because in that case, the district court was not willing to come to this conclusion until it heard from the lawyer, from the witness, from the witness's lawyer.

[00:04:10] Speaker 02:
That was what tried to happen here.

[00:04:13] Speaker 02:
That was what the Washington Court of Appeals wanted to see happen.

[00:04:17] Speaker 02:
They remanded the case specifically because they thought that this was an issue.

[00:04:22] Speaker 02:
Then the case got to the hearing, and Mr. Ward invoked the Fifth Amendment.

[00:04:32] Speaker 02:
I don't think that it's assuming too much to state that Mr. Ward was not threatened with perjury if he testified in line with his testimony at trial.

[00:04:44] Speaker 02:
I admit that as the court below said,

[00:04:47] Speaker 02:
He had signed his declaration supposedly under penalty of perjury, but obviously the state is the one with the power to charge people with perjury.

[00:04:57] Speaker 02:
He was not afraid that the defense counsel was going to get upset that he testified in line with his previous testimony and demand that he be charged with perjury.

[00:05:08] Speaker 02:
So I think that that's a pretty easy inference to come to that

[00:05:17] Speaker 02:
that there was an agreement that he didn't comply with.

[00:05:22] Speaker 02:
Your Honor, I asked for a case.

[00:05:23] Speaker 02:
I believe that the Horton case from this case also establishes that if there's a failure to disclose a lenient treatment, that that must be disclosed to the defense.

[00:05:35] Speaker 02:
And then also the cases that I cited in my brief, in my supplemental briefing, which are

[00:05:53] Speaker 02:
CVAC, when this court said that there was, that it upheld a Brady violation even though there was no evidence of an expressed meeting of the minds, of an explicit meeting of the minds, I'm sorry.

[00:06:08] Speaker 02:
And again, I think that that's the main point, that here there likely is not an agreement that was reduced to writing.

[00:06:19] Speaker 02:
However, again, as I've stated, the circumstantial facts are so clear, I think, that there was clearly an agreement between them that that overcomes the standard.

[00:06:31] Speaker 00:
So let's assume that there was the agreement, and then just for sake of argument right now, and then we have this testimony, like this recanted testimony.

[00:06:45] Speaker 00:
How do you fit that in with the Herrera standard, which talks about recanted testimony and the really difficult

[00:06:56] Speaker 00:
decisions that courts have to make and the high standard with doing something with that type of testimony.

[00:07:03] Speaker 02:
I recognize that it's a high standard, but I believe that this recantation is particularly credible.

[00:07:09] Speaker 02:
And I also think that it's significant that the Court of Appeals did want to have a hearing.

[00:07:16] Speaker 02:
There was an option to really flush this out.

[00:07:20] Speaker 02:
The state court and the state prosecutor had the option to call the prosecutor to demonstrate

[00:07:26] Speaker 02:
that this isn't what happened.

[00:07:27] Speaker 02:
To give Mr. Ward immunity, let him testify as he saw fit, and then establish that his recantation was unreliable.

[00:07:37] Speaker 02:
Again, unfortunately, that just didn't happen here.

[00:07:43] Speaker 02:
Just moving on quickly to the other issue on which the district court granted the certificate of appeal ability.

[00:07:49] Speaker 02:
I know that there's been some debate about which of the standards necessarily applies.

[00:07:54] Speaker 02:
If it's the Jackson standard, the Schlupp standard, or the Winship standard.

[00:07:58] Speaker 02:
I believe that under any of those standards, Mr. Olson is entitled to relief.

[00:08:02] Speaker 02:
I think obviously,

[00:08:04] Speaker 02:
The Jackson standard deals with the evidence that was available at trial.

[00:08:07] Speaker 02:
There was enough to make an inference that Ward had a deal, but I think that had the deal been explicitly made known, that it would have been much clearer.

[00:08:16] Speaker 02:
I think under the Winship standard, Mr. Olson is an innocent person, is legally innocent of this crime, and cannot be stand convicted of it.

[00:08:26] Speaker 02:
And under the Schlepp standard, I know that several of our others did not get a certificate of appealability, but again, I still think that

[00:08:34] Speaker 02:
This whole issue, it's not just isolated to the Brady part of it.

[00:08:39] Speaker 02:
It's not just isolated to insufficient evidence part of it.

[00:08:43] Speaker 02:
It's the whole system where everybody had an obligation to get to the bottom of what was going on with Bryant Ward, why he was testifying this way, why he was testifying in line with this deal.

[00:08:57] Speaker 02:
And everyone dropped the ball on it.

[00:08:59] Speaker 02:
And so because of that, I believe that the evidence was insufficient to

[00:09:04] Speaker 02:
convict Mr. Olson, and now he is an actually innocent person who stands convicted.

[00:09:10] Speaker 02:
For that reason, I believe that the decision of the district court should be remanded, ideally remanded with instructions to grant the writ.

[00:09:19] Speaker 02:
But I also think that there would be an option to remand it with instructions to have an evidentiary hearing.

[00:09:24] Speaker 02:
We've asked for an evidentiary hearing and were flat out denied.

[00:09:28] Speaker 02:
I think that this would be an example where the federal court

[00:09:32] Speaker 02:
could take a page from the Washington State Court and have the hearing that the state court didn't have and give us the opportunity to fully develop that evidence, to call the prosecutor, to call the witness, and actually establish what the facts are instead of rely on declarations from the prosecutor and what seems clear from the circumstances.

[00:09:55] Speaker 02:
Unless the court has any more questions, I'll reserve the remainder of my time for rebuttal.

[00:09:59] Speaker 03:
Very well.

[00:10:08] Speaker 01:
Good morning, Your Honors.

[00:10:09] Speaker 01:
My name is Hoggar Sontag, here to represent the state of Washington.

[00:10:12] Speaker 01:
May it please the Court.

[00:10:15] Speaker 01:
Just to pick up with the Brady Claib, I believe the Court had a number of questions on.

[00:10:22] Speaker 01:
Let's start with the suspicious synchronicity.

[00:10:27] Speaker 01:
It all boils down to not whether the agreement was reduced to writing, but whether there was an agreement.

[00:10:33] Speaker 01:
And the Washington Supreme Court, as Your Honor pointed out, concluded that there was no agreement of any kind, written, oral, some type of understanding that would qualify as Brady material.

[00:10:48] Speaker 01:
And so Mr. Olson simply has not shown that that determination was unreasonable given the state court record.

[00:10:56] Speaker 00:
But they did that without an evidentiary hearing, right?

[00:11:00] Speaker 01:
They did that without an evidentiary hearing because initially it was remanded for an evidentiary hearing.

[00:11:06] Speaker 01:
Very important to keep in mind, not because of the Jackson or Brady, but because of the issue whether he should be given a new trial.

[00:11:16] Speaker 01:
So under state law and not under any constitutional claims, as we pointed out, the state court of appeals rejected the Jackson claim unanimously because they obviously understood that the evidence is limited to the evidence that was presented to the jury.

[00:11:38] Speaker 01:
And so for that reason, Jackson really fails as a matter of law.

[00:11:43] Speaker 00:
But the trouble there, if we bring in the Brady issue, is the hearing was based upon whether the trial evidence supported it.

[00:11:50] Speaker 00:
But had the other testimony come in and that he had potentially had a deal and had been cross-examined, et cetera, that might have been a different outcome, right?

[00:12:02] Speaker 01:
That would be under Brady, potentially.

[00:12:04] Speaker 01:
But there we have to ask about materiality, where we have to look at the whole record, not just at his recantation.

[00:12:11] Speaker 01:
And we've shown in our brief that there is plenty of contradictions between his recantation, not only to his own trial testimony, which Jones Retailer points out, we have to consider when we assess the credibility

[00:12:26] Speaker 01:
But it's obviously also contradicted by plenty of other evidence, including testimony by Mr. Olson's former girlfriend, Ms.

[00:12:37] Speaker 01:
Clark, that when he called her from the jail in Idaho, that he didn't say, oh my gosh, I got into this situation.

[00:12:45] Speaker 00:
It's some type of admission, right?

[00:12:46] Speaker 01:
No, he said, I did this to defend you.

[00:12:49] Speaker 01:
And the you was not me.

[00:12:52] Speaker 01:
So otherwise, Mr. Olson, he said he did that to defend Ms.

[00:12:55] Speaker 01:
Clark.

[00:12:57] Speaker 01:
There's plenty of other evidence.

[00:12:58] Speaker 00:
And the plea agreement itself denies any agreement, right?

[00:13:03] Speaker 01:
Yes.

[00:13:03] Speaker 01:
I mean, the court, the state sentencing court in Mr. Brian Ward's case, sentencing him for the five robbery counts to a below standard range sentence, specifically made that finding that he testified without expecting anything in return.

[00:13:22] Speaker 01:
And these are state court findings that Mr. Olson simply speculates about that, oh, you know, there was some synchronicity.

[00:13:29] Speaker 01:
And let me address that specifically.

[00:13:31] Speaker 01:
Obviously, the prosecutor in Bryant Ward's case knew that Mr. Olson was testifying for the prosecution in Mr. Olson's case.

[00:13:44] Speaker 01:
And obviously, the prosecutor there was an experienced person.

[00:13:49] Speaker 01:
How could have have gone the trial testimony?

[00:13:52] Speaker 01:
Either Mr. Bryant Ward

[00:13:56] Speaker 01:
testified in favor of the state or he didn't and so there's there's a limited universe of Facts to consider after mr. Olson sentencing.

[00:14:06] Speaker 00:
So it doesn't take did the prosecutor seek a lenient sentence based upon that at the sentencing No, and again, there is no evidence and mr. Olson complaints.

[00:14:17] Speaker 01:
Oh, you know, we should have had an evidentiary he could have called the prosecutors at his evidentiary hearing in state court and

[00:14:23] Speaker 01:
He didn't do that.

[00:14:24] Speaker 01:
He waited somehow for the state to call them, but the state obviously has nothing to prove.

[00:14:30] Speaker 00:
Oh, but wasn't it limited?

[00:14:31] Speaker 00:
It didn't have the Brady issue at that hearing, correct?

[00:14:34] Speaker 01:
It didn't have the Brady issue, but the state trial court conducting the hearing made all sorts of findings that eventually the state court of appeals kind of rejected because it said,

[00:14:46] Speaker 01:
This is too much.

[00:14:47] Speaker 01:
We didn't ask you to do all this.

[00:14:49] Speaker 01:
So you could have arguably at least called the prosecutor, tried to call him, but he didn't do anything.

[00:14:55] Speaker 01:
So all we're left with is the unanimous declarations of the prosecutors.

[00:15:01] Speaker 01:
Even Brian Ward himself said,

[00:15:04] Speaker 01:
I had no deal.

[00:15:05] Speaker 01:
And he said that after he submitted his recantation.

[00:15:09] Speaker 01:
And even in his recantation, as Your Honors are aware, he simply said that he was simply afraid that if I did not testify favorably, that I would not receive a favorable plea bargain.

[00:15:22] Speaker 01:
As this court's precedent clearly says, if you just have the subjective belief, the subjective hope, there's nothing for the state to disclose.

[00:15:31] Speaker 01:
Because the state, obviously, doesn't know what hopes you have.

[00:15:36] Speaker 01:
They might be based on their experience.

[00:15:38] Speaker 01:
They might know, OK, well, obviously, he's not in court for the first time, so he might have some hopes one way or another.

[00:15:46] Speaker 01:
But that is not Brady material, because that is a conclusion obviously that Olson's very experienced trial counsel could have drawn himself as well, since we're talking about speculation.

[00:15:58] Speaker 01:
But like I said, there was simply no evidence that any evidence existed of a plea deal.

[00:16:06] Speaker 01:
And even if there was, as we briefed, the state court reasonably concluded that the outcome simply would not have changed.

[00:16:18] Speaker 01:
The evidence of guilt was overwhelming.

[00:16:20] Speaker 01:
And keep in mind that Olsen's story that he told to pitch his claim of self-defense to the jury was highly unbelievable.

[00:16:31] Speaker 01:
The victim was shot through the passenger side window, yet Mr. Olson claims that he was ahead of him, turned around and shot over his shoulder, and yet the victim was killed with a headshot.

[00:16:43] Speaker 01:
And innocent bystanders, uninvolved bystanders indicated that Mr. Olson took aim, and with a cold expression in his face, simply shot the person.

[00:16:58] Speaker 01:
So there was nothing, oh, I was trying to flee the scene, and I was just doing the parting shot, and guess what?

[00:17:05] Speaker 01:
It just happened to hit the person.

[00:17:08] Speaker 01:
So again, the state court reasonably concluded that there simply was no plea agreement and Mr. Olson does not go beyond any speculation to establish that there was and even if there was, the evidence of his guilt was overwhelming.

[00:17:26] Speaker 01:
Brian Ward's trial testimony was corroborated by other testimony that was presented and even if

[00:17:35] Speaker 01:
the state, even if trial counsel would have tried to impeach Brian Ward's testimony by some type of other plea agreement regarding the five robbery counts, the state could have easily countered that with prior consistent testimony.

[00:17:52] Speaker 01:
And under Washington law, we cited the State v. McWilliams case.

[00:17:58] Speaker 01:
Even if the person that made the prior statement has some generalized motivation to lie,

[00:18:05] Speaker 01:
that evidence still will come in as evidence of a prior statement, in other words, to rebut claims of recent fabrication.

[00:18:15] Speaker 00:
Do they have the statement, I did this for you then at that time, to use as a prior consistent statement at the hearing time?

[00:18:24] Speaker 00:
I'm not sure when that was made.

[00:18:26] Speaker 01:
Oh the prior statement was made two days after the shooting.

[00:18:29] Speaker 01:
Okay.

[00:18:30] Speaker 01:
So 15 months before the robbery crimes even occurred.

[00:18:35] Speaker 02:
Okay.

[00:18:35] Speaker 01:
And of course, again, Mr. Brian Ward, he might have had some hopes, some expectations by offering his services as a witness, but again, we're in speculation land and that is simply not sufficient to overcome the state court determination that there was no plea agreement and that even if there had been one, it would not have been material.

[00:19:04] Speaker 01:
Unless you have any other questions for me, I'd be happy to talk about the Jackson claim some more and distinguish it from Schlupp and Herrera, but.

[00:19:15] Speaker 03:
No.

[00:19:16] Speaker 03:
Nothing here.

[00:19:17] Speaker 01:
Very good.

[00:19:17] Speaker 01:
Then we simply ask the court to affirm the district court and affirm the dismissal of Mr. Olson's habeas petition.

[00:19:25] Speaker 01:
Thank you very much.

[00:19:42] Speaker 02:
As I stated earlier, it's not just suspicious circumstances.

[00:19:47] Speaker 02:
It's incredibly indicative circumstantial evidence that there was a deal here.

[00:19:53] Speaker 02:
It's not just that it happened a couple of days later, although that is significant.

[00:19:58] Speaker 02:
It was 21 months below the low end of the guidelines that Mr. Ward could have received, which is a substantial reduction in the state of Washington.

[00:20:08] Speaker 02:
I'd like to respond to the government's claim that it wasn't, or the state's claim that it wasn't material because there was overwhelming evidence of guilt.

[00:20:16] Speaker 02:
Again, that's simply not true.

[00:20:19] Speaker 02:
Yes, there was overwhelming evidence that Mr. Olson shot Robert Ward.

[00:20:24] Speaker 02:
However, there was not overwhelming evidence that he didn't do it in self-defense.

[00:20:29] Speaker 02:
Mr. Ward and Mr. Peterson were in, Bryant Ward and Mr. Peterson were in the car with Robert Ward.

[00:20:37] Speaker 02:
And to say that their testimony was not the most important piece of evidence suggesting that Mr. Olson could not have seen the gun, did not act in self-defense, is incorrect.

[00:20:49] Speaker 02:
I mean, the fact is that Robert Ward was found with a weapon.

[00:20:56] Speaker 02:
And the people who were in the car were in the best position to testify as to what he was doing with the weapon.

[00:21:04] Speaker 02:
I don't believe that Mr. Olson's statement to his girlfriend

[00:21:09] Speaker 02:
moves the needle at all in that regard because people say lots of things to their girlfriends.

[00:21:15] Speaker 02:
It doesn't necessarily change the fact that what Bryant Ward and Ricky Peterson saw was the most significant part of it.

[00:21:25] Speaker 02:
That was what would corroborate or not corroborate Mr. Olson's testimony.

[00:21:30] Speaker 02:
I believe that his statement that he had no deal

[00:21:36] Speaker 02:
is, again, unreliable, that yes, the robberies happened later.

[00:21:40] Speaker 02:
However, as I stated earlier, this is unfortunately a man that's been around the block a few times.

[00:21:46] Speaker 02:
And at the time that he was first before the court, he had cases where he was looking to curry favor.

[00:21:52] Speaker 02:
When he was before the police, he had cases where he was looking to curry favor.

[00:21:55] Speaker 02:
And at the time of the trial, he also did.

[00:21:58] Speaker 02:
And I think that that's another significant thing to note, that it's suspicious that Bryant Ward happened to remain in Thurston County

[00:22:06] Speaker 02:
in order to be able to testify at Mr. Olson's trial if there was no sort of agreement that he was going to testify.

[00:22:14] Speaker 02:
And so for that reason, I don't believe that his prior consistent testimony is relevant either.

[00:22:20] Speaker 02:
It's relevant, but not dispositive.

[00:22:23] Speaker 02:
He clearly had a deal.

[00:22:24] Speaker 02:
It clearly should have been disclosed to the defense.

[00:22:28] Speaker 02:
If the defense had been able to establish that the key state witness had such an overwhelming incentive to lie,

[00:22:35] Speaker 02:
to get almost two years off of his sentence, that would have been very significant on the jury's verdict.

[00:22:42] Speaker 02:
And I believe that the opinion of the district court should be reversed and the case remanded with instructions to either grant the writ or hold an evidentiary here.

[00:22:52] Speaker 02:
Thank you.

[00:22:53] Speaker 02:
Unless you have any further questions.

[00:22:55] Speaker 03:
All right, thank you to both of you for your briefing and your argument.

[00:22:58] Speaker 03:
This matter is submitted, and especially Mr. Kennedy, I want to thank your office for stepping up to handle these cases.

[00:23:03] Speaker 03:
A lot of federal defender's offices don't do these cases.

[00:23:05] Speaker 03:
I know they're more work, but it really matters when you guys step up.

[00:23:08] Speaker 03:
So thank you for doing that.

[00:23:11] Speaker 03:
All right, so this particular panel is adjourned.

[00:23:14] Speaker 03:
We'll be back tomorrow with Judge Gould at 10 AM.

[00:23:17] Speaker 03:
Thank you.