[00:00:00] Speaker 01:
Good morning.

[00:00:00] Speaker 01:
My name is Christopher Warren.

[00:00:02] Speaker 01:
May it please the court, I'd ask to reserve for five minutes for rebuttal.

[00:00:06] Speaker 01:
This case is very unique in one very serious respect.

[00:00:12] Speaker 01:
The jury in this case never heard why the initial child alleged victim entered the principal's office and actually said what

[00:00:25] Speaker 01:
had occurred.

[00:00:26] Speaker 01:
In fact, it was a completely false narrative.

[00:00:29] Speaker 01:
It was done as though the child was coming into that principal's office out of moral courage.

[00:00:35] Speaker 01:
I can't take it anymore and this is what's happened to me.

[00:00:39] Speaker 01:
I have been sexually assaulted.

[00:00:41] Speaker 01:
That is a completely false statement.

[00:00:44] Speaker 01:
And that is what the jury heard.

[00:00:46] Speaker 01:
What was the truth?

[00:00:48] Speaker 01:
She was brought into the principal's office because her mother had been whipping her with an electrical cord.

[00:00:53] Speaker 01:
That was sustained.

[00:00:54] Speaker 01:
And when she was brought into the office, she immediately deflected and started to say, that was my client.

[00:01:01] Speaker 00:
OK, so I understand the argument.

[00:01:04] Speaker 00:
And I agree with you that there's some irregularity here.

[00:01:10] Speaker 00:
But was this presented on direct appeal?

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

[00:01:14] Speaker 01:
This was presented on direct appeal, it was argued, oral argument occurred on direct appeal and in fact it was Justice Cherry during oral argument who asked the prosecutor, weren't these facts completely false and it is

[00:01:27] Speaker 01:
I've cited to it in the brief.

[00:01:28] Speaker 02:
But then the Nevada Supreme Court has this long footnote at the end, and one of the middle paragraphs of that footnote says that they didn't view this issue as having been properly preserved, citing portions of their state appellate rules.

[00:01:48] Speaker 02:
So is it procedurally defaulted?

[00:01:51] Speaker 01:
No, it is not.

[00:01:52] Speaker 01:
And the district court below in this case found that that was completely improper, a completely improper... By the Nevada Supreme Court?

[00:02:01] Speaker 00:
Correct.

[00:02:01] Speaker 00:
Okay, but let's take this seriously.

[00:02:04] Speaker 00:
You don't disagree that the Nevada Supreme Court said it was not properly presented on appeal?

[00:02:11] Speaker 00:
That's exactly what they said.

[00:02:12] Speaker 00:
Okay.

[00:02:13] Speaker 00:
Okay.

[00:02:14] Speaker 00:
So if they're right,

[00:02:16] Speaker 00:
then it's procedurally defaulted.

[00:02:18] Speaker 00:
How could they possibly be right?

[00:02:20] Speaker 00:
Okay, that's not my question.

[00:02:22] Speaker 00:
If they're right, and it's a question of Nevada state law, right?

[00:02:28] Speaker 00:
Well, I disagree because it was a federal issue and as the district... But the question of whether it was procedurally defaulted, or excuse me, the question whether it was properly presented,

[00:02:39] Speaker 00:
is a procedural question under Nevada rules.

[00:02:44] Speaker 01:
Well, I just don't see how it was not possibly presented correctly because the whole trial transcript was in there and you can see from the trial transcript this is a complete falsehood.

[00:02:53] Speaker 01:
And so it was argued as though the trial transcripts itself show the falsehood.

[00:02:58] Speaker 01:
And in fact, trial counsel asked in the middle of trial for reconsideration, and I have this in volume nine of our... But the Nevada Supreme Court... Okay, so you're saying that this is... the state...

[00:03:17] Speaker 00:
The Nevada Supreme Court said that Thomas had failed to provide the district court's disposition on the issue in his direct appeal in accordance with Nevada state procedural requirements.

[00:03:30] Speaker 01:
And that is inaccurate.

[00:03:31] Speaker 01:
It is completely inaccurate because it's a direct falsehood.

[00:03:35] Speaker 00:
In other words, what the argument was was this was a violation of your right of the... Okay, so even if you're right, and I just don't know how to... I'm trying to get a paradigm here for how to decide this, because even if you're right that that is false, it has to be a... In order to have a habeas claim, it has to be a violation of a clearly established federal law.

[00:04:00] Speaker 00:
So I don't understand how you get to that threshold.

[00:04:03] Speaker 00:
I mean, at first I'd say, look, this is Nevada applying Nevada rules.

[00:04:07] Speaker 00:
They cited three or four cases.

[00:04:11] Speaker 00:
I mean, are we supposed to dig into that and say, well, no, you just, at best, what you can get is us concluding, as the district court apparently did,

[00:04:22] Speaker 00:
that Nevada misapplied its own rules.

[00:04:25] Speaker 00:
Correct.

[00:04:26] Speaker 00:
How is that a violation of clearly established federal law?

[00:04:29] Speaker 01:
Because as the district court below in federal court said that they didn't even consider the federal issue.

[00:04:36] Speaker 01:
What they did is they completely ignored the federal issue, decided we're not going to hear this.

[00:04:40] Speaker 01:
Right, but they did it based on a state procedural

[00:04:44] Speaker 01:
default effectively.

[00:04:45] Speaker 01:
But it can't be because what they're saying is that the issue they couldn't read the record enough to tell what the issue was but the issue was the falsehood and I have where defense counsel in trial asked the court to reconsider it's right in the trial record the Nevada Supreme Court had it and what when Mr. Mann trial counsel said this is something that's happened it's false I want to be able to present it

[00:05:10] Speaker 01:
And the district court responds, I don't know if you, and I admonish you.

[00:05:16] Speaker 01:
So here, it was clear in the record to the Nevada Supreme Court, clear.

[00:05:20] Speaker 01:
All they had to do was read it, and they could see the federal error.

[00:05:24] Speaker 01:
There was a false narrative taking place, and they just completely ignored it.

[00:05:28] Speaker 02:
I have a minor question.

[00:05:31] Speaker 02:
Is the entirety of the appellant's appendix that was filed with the Nevada Supreme Court, was that submitted as part of the record to the district court in connection with these habeas proceedings?

[00:05:46] Speaker 01:
Yes.

[00:05:49] Speaker 01:
Let me see if I see the new ones.

[00:05:51] Speaker 02:
When the appeal was filed in the Nevada Supreme Court, Nevada Supreme Court requires this appendix to be created under its Rule 30.

[00:05:58] Speaker 02:
Correct.

[00:05:58] Speaker 02:
And a massive 26-volume appendix was prepared and submitted.

[00:06:04] Speaker 02:
Is that appendix in all those 26 volumes, is that in the record of the district court in this case?

[00:06:11] Speaker 02:
Yes.

[00:06:12] Speaker ?:
OK.

[00:06:12] Speaker 02:
And that's why the district court, in this case, the federal district court... Is that submitted with the habeas petition, or did the state submit it when it submitted the records?

[00:06:20] Speaker 01:
I believe I submitted it, and it was submitted.

[00:06:23] Speaker 01:
But if you looked at it and somehow it was wrong, I wouldn't dispute that.

[00:06:27] Speaker 01:
But I believe the entire trial record was in there, and the district court... No, I wasn't asking the trial record.

[00:06:32] Speaker 02:
I was asking this 26-volume appellate document that was filed in the Nevada Supreme Court, so we would know what the Nevada Supreme Court had in front of it.

[00:06:41] Speaker 01:
yes when it made this comment yes and I don't what I'm missing and don't completely understand it all is when you read the trial record which was before the Nevada Supreme Court it's clear as day they just ignored it all that one justice asked and then six of them

[00:06:57] Speaker 01:
agreed, or seven of them, was that the order itself, the pre-trial order was not in there.

[00:07:03] Speaker 01:
Yet you can see in the record that what took place was a completely false narrative.

[00:07:08] Speaker 01:
If the jury was back here, the jury listening to this, they'd say, what is this man talking about?

[00:07:14] Speaker 00:
We have this right here, and why is he saying it's not here?

[00:07:17] Speaker 00:
That's your position.

[00:07:18] Speaker 01:
No.

[00:07:19] Speaker 01:
What I'm saying is that the jury would think, what is this case about?

[00:07:22] Speaker 01:
That child had the moral turpitude to walk into that principles.

[00:07:26] Speaker 01:
Turpitude, courage.

[00:07:27] Speaker 01:
Courage.

[00:07:28] Speaker 01:
Had the courage to come in there.

[00:07:30] Speaker 01:
But that was a falsehood.

[00:07:31] Speaker 02:
I want to take you forward to, can you address Judge Dorsey's determination that this didn't meet the Brecht standard?

[00:07:41] Speaker 01:
Yes, it's really interesting as you look at it, where she missed out, and that's why I concentrated it on.

[00:07:49] Speaker 01:
She said that reasonable minds could differ, but she never addressed the very fact that of the four accusers, AP, half the verdicts were not guilty.

[00:08:00] Speaker 01:
One third of ZF verdicts were not guilty.

[00:08:03] Speaker 01:
One third of MS not guilty.

[00:08:05] Speaker 01:
All of MSB not guilty.

[00:08:07] Speaker 01:
So when she was doing this harmless error analysis,

[00:08:11] Speaker 01:
When she was doing the harmless error analysis, she failed to recognize that if this jury that obviously was skeptical, had skepticism, this would have been the tipping point, the inception of the case, the right under... But one of the two other accusers that she relied on, they were actually all acquittals.

[00:08:29] Speaker 01:
No, no, I agree with you in part, so I'm accurate.

[00:08:34] Speaker 01:
The other two she did not consider, all of MSBs were not guilty, and one-third of MSs

[00:08:41] Speaker 02:
I'm trying to understand your argument.

[00:08:45] Speaker 02:
As I understood, Judge Dorsey, what she said was that this would have impaired the credibility of these

[00:08:51] Speaker 02:
two witnesses, but there were two others, and that's more speculative, and therefore this doesn't meet Brecht.

[00:08:59] Speaker 02:
But part of your response is that for one of those two other ones, they were all acquittals?

[00:09:05] Speaker 01:
Do I have that correct?

[00:09:05] Speaker 01:
Yes, and that she didn't consider that.

[00:09:07] Speaker 01:
That she didn't consider that this jury had been very close.

[00:09:11] Speaker 01:
It was obviously

[00:09:12] Speaker 00:
very close decision and under Davis versus Alaska I'm trying to understand just to finalize this point is your argument I mean because I guess at one level you could show that he still wouldn't have gotten convicted on the first two tests under your theory he still wouldn't have gotten convicted on the first two

[00:09:36] Speaker 00:
the first two witnesses.

[00:09:37] Speaker 01:
No, because the jury never got to hear why the revelation occurred.

[00:09:42] Speaker 01:
They never heard this.

[00:09:43] Speaker 01:
It was a falsehood.

[00:09:44] Speaker 00:
No, that's my point.

[00:09:46] Speaker 00:
I think this is your argument, is that he was convicted on the testimony of the first two.

[00:09:52] Speaker 00:
There were convictions, even though some of them he was acquitted on.

[00:09:56] Speaker 00:
There were convictions, and those would not have happened in your view if this had come in.

[00:10:02] Speaker 00:
Correct.

[00:10:03] Speaker 00:
That's absolutely right.

[00:10:04] Speaker 00:
So, in a way, is harmlessness even an issue here because, I mean, your point is he was convicted on, I don't know, how many total grounds was he convicted on across all four witnesses?

[00:10:19] Speaker 01:
I did not count them.

[00:10:20] Speaker 00:
Okay.

[00:10:20] Speaker 00:
I did not.

[00:10:21] Speaker 00:
But you're saying if it was 20, it might have only been 10, and that's a material difference.

[00:10:27] Speaker 01:
No, I'm saying that I believe that if the jury had known why the inception of the revelation came that he would have been acquitted of all charges because then... Do you have to prove that?

[00:10:36] Speaker 00:
to be successful here?

[00:10:38] Speaker 00:
Do you have to prove that he would have been acquitted of all the charges, or just some charges?

[00:10:41] Speaker 00:
Because I think you've got a pretty heavy burden.

[00:10:44] Speaker 00:
Substantial.

[00:10:45] Speaker 00:
And you've got a heavy burden to say that he would have been acquitted on all of them.

[00:10:48] Speaker 01:
I have to show substantial and injurious effect.

[00:10:51] Speaker 01:
And under Davis versus Alaska, motive and bias carry a unique constitutional principle.

[00:10:59] Speaker 01:
He had his entire theory of defense gutted.

[00:11:04] Speaker 01:
And not only that, but what's more importantly, look at, and this is where the Nevada Supreme Court just completely ignored the transcript.

[00:11:11] Speaker 01:
The prosecutor was permitted to get up and mock the defense for lack of motive, including saying things like, oh, are they saying the mother was vile?

[00:11:21] Speaker 01:
Well, the answer that you would imagine defense counsel at trial wanted to scream out is yes, she was whipping her child with an electrical cord.

[00:11:28] Speaker 01:
You're presenting a complete false narrative to a jury that this mother was a caring mother and they're mocking, they're mocking the defense.

[00:11:37] Speaker 01:
mocking the defense as to you have no motive.

[00:11:40] Speaker 01:
The prosecutor even said it.

[00:11:42] Speaker 01:
And I laid out 10 times, in closing argument, the prosecution mocked the defense and did it in a false narrative.

[00:11:53] Speaker 01:
We had a trial, and the Constitution does not permit to let a man be convicted on a completely false narrative and then judicial overreach.

[00:12:05] Speaker 01:
and then let prosecutors mock the defense, and at the same time, have a judge who is telling defense counsel, I admonish you.

[00:12:13] Speaker 01:
He could do nothing.

[00:12:15] Speaker 01:
This is all in the record.

[00:12:16] Speaker 00:
The Nevada Supreme Court had all of this information.

[00:12:19] Speaker 00:
OK.

[00:12:19] Speaker 00:
Do you want to reserve time for rebuttal?

[00:12:22] Speaker 00:
I do.

[00:12:22] Speaker 00:
OK.

[00:12:22] Speaker 00:
I know you were just getting wound up, so I'd hate to cut you off when it was just getting good.

[00:12:26] Speaker 00:
Thank you.

[00:12:27] Speaker 00:
I'm sorry.

[00:12:27] Speaker 00:
All right.

[00:12:37] Speaker 03:
Good morning, Your Honors.

[00:12:39] Speaker 03:
May it please the Court?

[00:12:40] Speaker 03:
My name is Katrina Lopez.

[00:12:42] Speaker 03:
I'm appearing on behalf of the respondents.

[00:12:43] Speaker 03:
I believe in this matter.

[00:12:45] Speaker 03:
This Court should affirm the decision of the Federal District Court and deny Thomas Habeas relief for two reasons.

[00:12:52] Speaker 03:
First, the Federal District Court correctly concluded that any error by the trial court in excluding the evidence was harmless under Brecht.

[00:13:00] Speaker 03:
And two, in the alternative, the Nevada Supreme Court

[00:13:04] Speaker 03:
applying its own state procedural bars, rejected the claim.

[00:13:08] Speaker 02:
I want to understand the procedural bar.

[00:13:12] Speaker 02:
What's the answer to my question?

[00:13:13] Speaker 02:
Is the 26-volume appendix that was filed in the Nevada Supreme Court, is that in the district court record of this case?

[00:13:23] Speaker 03:
The appendix, yes, Your Honor, it was provided to the federal district court.

[00:13:32] Speaker 02:
But if it weren't, I mean, it's available online because the Nevada Supreme Court actually lets you see all the PDFs so you can pull them up and look at them.

[00:13:41] Speaker 02:
We could look at them even if they weren't in the judicial... they'd be subject to judicial notice, correct?

[00:13:46] Speaker 02:
Yes, Your Honor.

[00:13:47] Speaker 02:
Okay.

[00:13:47] Speaker 02:
So what exactly did he not put

[00:13:51] Speaker 02:
into the appendix that got the Nevada Supreme Court upset, because they say we are unable to evaluate Thomas's arguments regarding the precluded evidence and motion for independent psychological evaluations, which is a separate issue, because he has failed to provide the district court's dispositions

[00:14:11] Speaker 02:
either in the form of orders or hearing transcripts in order for us to determine the existence of errors.

[00:14:17] Speaker 02:
So what is the document that he should have put in that they found that he did not put in?

[00:14:23] Speaker 03:
Okay, yes, Your Honor.

[00:14:23] Speaker 03:
So in 2SER 531, that's the actual appendix that was presented to the Nevada Supreme Court on direct appeal.

[00:14:31] Speaker 00:
I'm sorry, 2SER what?

[00:14:32] Speaker 03:
531.

[00:14:34] Speaker 03:
That's the appendix.

[00:14:35] Speaker 03:
Okay.

[00:14:35] Speaker 03:
And so from reviewing the appendix, there are two things that are missing.

[00:14:39] Speaker 03:
I referenced one of them in 8SER, 1822 to 1823, and that is the March 10, 2006 transcript from the supplemental briefing.

[00:14:51] Speaker 03:
That's the minute order.

[00:14:53] Speaker 03:
Correct.

[00:14:54] Speaker 03:
And then so there's a transcript.

[00:14:55] Speaker 03:
Obviously there was arguments held.

[00:14:57] Speaker 03:
That was not provided to the Nevada Supreme Court.

[00:15:00] Speaker 02:
the arguments that are reflected in this minute order.

[00:15:03] Speaker 02:
Yes, Your Honor.

[00:15:05] Speaker 02:
Now let me stop you there because this document that at 8SER 1822 is in fact in the appendix.

[00:15:13] Speaker 02:
It's volume 26 of the appendix, page 4555.

[00:15:19] Speaker 02:
It's in there.

[00:15:20] Speaker 02:
I pulled it up.

[00:15:21] Speaker 02:
I looked at it.

[00:15:22] Speaker 02:
It's there.

[00:15:23] Speaker 02:
So this statement by the Miranda Supreme Court is just completely wrong.

[00:15:26] Speaker 02:
The document is in fact in the appendix.

[00:15:28] Speaker 02:
They just missed it.

[00:15:29] Speaker 02:
Indeed, the government, in responding to the appeal in the red brief, cited this very document at exactly that page.

[00:15:40] Speaker 02:
I don't see how the Nevada Supreme Court could say that the document was not presented to them when the government itself pointed to it in the appendix and said that's where the document is.

[00:15:51] Speaker 03:
But Your Honor, it's not just the transcript from the March 10, 2016 date.

[00:15:55] Speaker 03:
There's also the order missing from April 12, 2016, which is referenced in the record 8 SER 1820 through 1821.

[00:16:05] Speaker 02:
You're correct.

[00:16:05] Speaker 02:
That is not in the appendix, but that

[00:16:08] Speaker 02:
order is completely devoid of reasoning.

[00:16:11] Speaker 02:
This is a form, conclusory order that was submitted by the government that the judge signed.

[00:16:18] Speaker 02:
The only document that has any reasoning in it is the minute order, but the minute order is in the record.

[00:16:25] Speaker 02:
So the nomadic Supreme Court said, we've not been provided either in the form of orders or hearing transcripts when they did in fact have the order.

[00:16:32] Speaker 02:
So this whole procedural default is just based on a patent misreading of the record.

[00:16:38] Speaker 02:
So that says to me that we've just set this all aside, and we're now then into an over review.

[00:16:44] Speaker 02:
Are we not?

[00:16:46] Speaker 03:
Well, Your Honor, it's still the respondent's position that the claim was still presented to the Nevada Supreme Court, specifically in 2 SER 464 to 481, and in his reply brief in 2 SER 327 to 334,

[00:17:03] Speaker 03:
and I'm paraphrasing, Thomas basically says that he was denied his fundamental right to present a theory of defense.

[00:17:10] Speaker 03:
So it was presented to the Nevada Supreme Court, not just in the heading, but in the briefing as well.

[00:17:15] Speaker 03:
And so the Nevada Supreme Court, not having the order as far as the disposition from the underlying motion in Lemony, they rejected the claim.

[00:17:24] Speaker 03:
And that is what makes the procedure the default, because you still have to comply with Nevada rule of appellate procedure 28A10A,

[00:17:32] Speaker 03:
and Nevada rule of appellate procedure 30B2-3, which states that you have to have the requirements of the contents for the appendix on appeal as well as cite to the record, the entirety of it.

[00:17:44] Speaker 02:
Because when you're dealing with this claim... So you are correct that in the opening brief in the Nevada Supreme Court, they did not cite the amended order.

[00:17:54] Speaker 02:
They cited the portion of the later transcript where she reaffirms the order and says, you haven't shown anything to change it.

[00:18:03] Speaker 02:
But then the state files its brief and in discussing this issue, cites and discusses the minute order and points to where it is in the record.

[00:18:11] Speaker 02:
And then we get this comment from the Nevada Supreme Court that says, we're unable to evaluate it.

[00:18:17] Speaker 02:
We just can't do it because you didn't give us the order when, if they had read the briefs in front of them, they would see that the order is in the record in front of them.

[00:18:28] Speaker 03:
And so, Your Honor, even if this court disagrees and states that the claim is not procedurally defaulted,

[00:18:36] Speaker 03:
that the minted order as well as the transcript in essence was provided to the Nevada Supreme Court, Thomas is still not entitled to relief because the federal district court under novel review correctly concluded that any any error was harmless under Brett.

[00:18:52] Speaker 03:
When you're looking at Brett.

[00:18:53] Speaker 02:
What's your response to his argument that, well, Judge Jersey pointed out that this wouldn't impair the credibility of two other people

[00:19:00] Speaker 02:
But one of them, actually all the claims were rejected anyway, and the other proportion of them, so this actually was a lot shakier than she seemed to realize.

[00:19:12] Speaker 03:
Well, Your Honor, if we're talking specifically about the counts in this situation, you have counts 1 through 10.

[00:19:19] Speaker 03:
They apply to the victim AP.

[00:19:22] Speaker 03:
And so when you're dealing with the counts, counts 1 and 2,

[00:19:27] Speaker 03:
Counts five and six and count seven and eight, they were alternative.

[00:19:31] Speaker 03:
So it was a situation where if you didn't find him guilty of sex assault on the alternative count, it was lewdness.

[00:19:37] Speaker 00:
So that is why he could not- This is one of the, I'm sorry, this is one of the third or the fourth witnesses?

[00:19:43] Speaker 03:
Yes, yes, your honor, AP.

[00:19:45] Speaker 03:
And so when you're looking at these alternative counts, he could only have been convicted of three of those with respect to the six, because there are alternative counts.

[00:19:53] Speaker 03:
You cannot be convicted of both.

[00:19:55] Speaker 03:
because they're two different sexual acts from one sexual encounter.

[00:19:58] Speaker 00:
Okay, so your point is he was actually convicted of 50%, not 30% of the charges.

[00:20:05] Speaker 03:
With respect to AP, if you're looking at the fact that... And with respect to the other witness... Well, Your Honor, if you're looking at her sister, ZF, he was found... The counts pertaining to ZF are counts 11 through 15, and he was found guilty of four out of five of those counts.

[00:20:23] Speaker 02:
And then four.

[00:20:24] Speaker 02:
Two of the counts, because the verdict form doesn't say who, what count, what victim they applied to.

[00:20:30] Speaker 02:
Which ones of the MSB counts?

[00:20:32] Speaker 03:
Well, Your Honor, if you're looking at the jury instructions, they are unredacted, and they have the names of the actual victims.

[00:20:41] Speaker 03:
They're in the juries.

[00:20:41] Speaker 03:
That'll tell us which one.

[00:20:44] Speaker 03:
OK.

[00:20:44] Speaker 03:
Yes, 2ER125 to 161.

[00:20:47] Speaker 02:
OK, I have that.

[00:20:49] Speaker 03:
And then so with respect to ZF, her sister, that's four out of the five counts.

[00:20:54] Speaker 03:
And then you have MS, that's counts 16 through 21.

[00:20:59] Speaker 03:
And he was found guilty of three out of six of those counts.

[00:21:04] Speaker 03:
And then you have MSB, which was the remaining counts 22 and 23.

[00:21:10] Speaker 03:
And he was found not guilty of both of those counts.

[00:21:16] Speaker 00:
OK.

[00:21:18] Speaker 00:
But isn't his argument that, look, if this evidence had come in as to AP, three of the six, your position is six of those were on the table, he was convicted of three of them, he could have been acquitted of three.

[00:21:37] Speaker 03:
Not necessarily, Your Honor, because when we're looking at Brecht, we're looking at, did the error, did the exclusion of the evidence, did it have a substantial and injurious effect or influence on the jury's verdict?

[00:21:48] Speaker 03:
And not so.

[00:21:50] Speaker 00:
But wouldn't the jury's verdict, I mean, if he was convicted of fewer counts, wouldn't that affect the jury's verdict?

[00:21:58] Speaker 00:
Maybe I'm just completely off base on that.

[00:22:02] Speaker 03:
Well, not necessarily, Your Honor, because even if you look at count eight,

[00:22:07] Speaker 03:
which pertains to AP.

[00:22:09] Speaker 03:
Count 13, which applies to ZF, the witness in question.

[00:22:14] Speaker 03:
And then if you look at Count 17 through MS, these are three separate girls, three instances in the state of Nevada where they were sexually abused by Thomas.

[00:22:24] Speaker 03:
And if you look at the charging language, he was convicted of lewdness with a child under 14, and it involves him using his fingers and or hands to touch

[00:22:36] Speaker 03:
and or rub and or fondle the genital areas of these three girls.

[00:22:41] Speaker 03:
These three girls, they attended the daycare that he worked in.

[00:22:45] Speaker 03:
These three girls, their parents were the friend of the defendant.

[00:22:48] Speaker 03:
These three girls, they were staying at his house.

[00:22:50] Speaker 00:
My question is more fundamental.

[00:22:52] Speaker 00:
Does he need to show that it would affect every count?

[00:22:56] Speaker 00:
He was convicted of

[00:22:58] Speaker 00:
He was convicted of ten counts across all four girls, right?

[00:23:07] Speaker 00:
Does he need to show that all ten counts he would have gotten an acquittal or could he just show five counts he would have gotten an acquittal?

[00:23:14] Speaker 00:
Wouldn't that be enough for habeas relief?

[00:23:16] Speaker 03:
He wouldn't have to show all counts, but Your Honor, just because he was found not guilty on some charges, that doesn't absolve his guilt.

[00:23:23] Speaker 00:
That's not my point.

[00:23:24] Speaker 00:
My point is

[00:23:27] Speaker 00:
If we assume that it would have had a material effect, and we will have to make that determination, but if we were to assume or find that it had a material effect as to AP and ZF, why wouldn't that be enough to say it would have affected, in that case it could have affected seven of his 10 convictions if we think that the jury would not have reached a conviction on seven of those 10?

[00:23:55] Speaker 03:
then, Your Honor, it would go back to the timeline.

[00:23:58] Speaker 03:
So when we're looking at, with respect to AP and ZF, they allege that they were sexually abused by Thomas from January 2006 to January of 2010.

[00:24:07] Speaker 03:
But then at some point, ZF moves to Arizona.

[00:24:11] Speaker 03:
But what opposing counsel is missing is that ZF discloses sexual abuse to her sister, AP First, before it was even disclosed to the principal.

[00:24:20] Speaker 00:
She told her sister that she- Your point is that this still would have come in in another way, even if the evidence had come in that she was called into the principal's office because of beating, by the way.

[00:24:34] Speaker 03:
Yes, Your Honor, because she already disclosed to her sister months before.

[00:24:39] Speaker 00:
I think that goes to the harmlessness question of whether he could have been convicted.

[00:24:45] Speaker 00:
But I just have a threshold question, and that is, even if his alleged error only affected half or 60% of the convictions, if we thought it had affected those, we would grant relief, wouldn't we?

[00:25:01] Speaker 03:
You would, but we would still have to take into consideration MS's testimony.

[00:25:06] Speaker 00:
I understand.

[00:25:07] Speaker 00:
OK.

[00:25:08] Speaker 00:
And so when we're looking at your honor, the fact that- How does MS's testimony affect AP and ZF?

[00:25:14] Speaker 00:
Just because it makes it more likely to have happened anyway, whether or not the beating had been properly presented.

[00:25:22] Speaker 03:
When you're looking at MS's testimony, Your Honor, there is nothing in the record that shows that MS was related to AP.

[00:25:30] Speaker 00:
No, I give you that.

[00:25:32] Speaker 00:
I'm saying those convictions would stand.

[00:25:35] Speaker 00:
But the other seven are questionable under his theory.

[00:25:41] Speaker 00:
But that's a big difference to Thomas if he gets

[00:25:45] Speaker 00:
released or if he gets habeas relief for seven of the ten convictions, I imagine that would have a material effect on his sentence and everything else about this case.

[00:25:57] Speaker 00:
No, Your Honor, I understand that position, but again, our position... You're saying you don't get there because there's other evidence that supported it, even if you were to discount what was said in the principal's office.

[00:26:10] Speaker 00:
Yes, Your Honor, because when we're looking at the timeline and we're saying... I just don't understand how MS is one of those pieces of evidence that supports AP or ZF.

[00:26:19] Speaker 00:
What you said about AP telling ZF later, that makes sense to me.

[00:26:24] Speaker 03:
But I don't understand how MS is evidence other than the fact that it corroborates that he had a propensity to do this Yes, all it does is strengthen the evidence which goes against his argument that that that that there was speculation or Fabrication as far as the sexual abuse deflect from April because when you're looking at April

[00:26:46] Speaker 03:
It was one isolated incident, April disclosed the abuse to the principal the next day.

[00:26:51] Speaker 03:
She confessed nine days later, but all of this occurred before Thomas was even arrested.

[00:26:56] Speaker 03:
So when we're looking at this timeline, there is nothing, which the Nevada Supreme Court agreed, there is nothing to show that there is a correlation between the disclosing of the physical abuse and the sexual abuse done by Thomas to these four girls in this instance.

[00:27:11] Speaker 03:
It's speculative at best.

[00:27:14] Speaker 03:
And if there's no more answers from the court, the respondents would respectfully request that this court affirm the decision of the federal district court and deny Thomas federal habeas relief.

[00:27:27] Speaker 00:
OK.

[00:27:27] Speaker 00:
Thank you.

[00:27:28] Speaker 00:
Thank you.

[00:27:39] Speaker 01:
Federal District Court found and I'm quoting from page 16 of the order finally April's abuse of CS amounted CF amounted to a major part of what otherwise would have been Thomas's best defense His best defense was excluded and You're talking about the two other and how does it impair?

[00:27:59] Speaker 02:
I mean the problem.

[00:28:01] Speaker 02:
I think that

[00:28:02] Speaker 02:
Church Nelson's question was focused on it.

[00:28:04] Speaker 02:
How does this impair the counts with respect to MS?

[00:28:07] Speaker 02:
How does it, how is there a collateral spillover to her credibility?

[00:28:10] Speaker 02:
She has no connection.

[00:28:12] Speaker 01:
Here's why she didn't come forward voluntarily at some other time.

[00:28:17] Speaker 01:
The way that occurred in the record world will bear it out is once this, this was a daycare assistant director.

[00:28:23] Speaker 01:
So it made quite a bit of headlines as you could imagine.

[00:28:26] Speaker 01:
And then the mother of

[00:28:29] Speaker 01:
of MS and MSB started to ask the children, did this happen to you?

[00:28:35] Speaker 01:
Then the revelation came out.

[00:28:37] Speaker 01:
So you can already see the bias.

[00:28:39] Speaker 01:
It starts with the inception.

[00:28:42] Speaker 02:
You had the ability to completely make that argument to the jury.

[00:28:45] Speaker 02:
I don't see how that argument as to MS is enhanced by having this come in as to AP and ZF.

[00:28:55] Speaker 02:
That's what I'm struggling with.

[00:28:56] Speaker 01:
It most certainly does because what you've done is you've taken away the court, the district court at trial took away the ability of his best defense to make... His best defense as to AP and ZF.

[00:29:09] Speaker 00:
Oh.

[00:29:10] Speaker 00:
I don't...

[00:29:11] Speaker 00:
I think we're asking the same question.

[00:29:13] Speaker 01:
No, if the first two are false, if the two have manufactured to deflect away from their mother, then it comes out.

[00:29:21] Speaker 01:
And we've seen this in other cases where all of a sudden children will come out and say, yes, something has happened.

[00:29:27] Speaker 01:
Something has occurred.

[00:29:29] Speaker 02:
But you had the ability to make that defense.

[00:29:31] Speaker 02:
And the fact that you had a theory that AP and ZF were covering for the mother because of the abuse allegations and all that was kept out.

[00:29:41] Speaker 02:
If all that comes in, how does that rationally affect MS's credibility in a way that's different from what you already had to be able to argue?

[00:29:51] Speaker 01:
Because it would show that the very inception of the case was false.

[00:29:54] Speaker 01:
It was a false narrative and the defense attorney could never make that case.

[00:29:58] Speaker 00:
If I could argue to a jury and say... The problem with that, I understand your argument, but the problem is you're basically saying he gets a get out of jail free card on any other

[00:30:09] Speaker 00:
harm that he committed because of these first false, assuming your argument is true, because of these first false claims.

[00:30:19] Speaker 00:
I mean, that can't be true.

[00:30:21] Speaker 00:
Two things could be true.

[00:30:23] Speaker 00:
He could be falsely accused of the first two, and he could actually have done the second two, or at least the fourth or whatever.

[00:30:32] Speaker 01:
Well, all of a sudden I realize that the court is completely speculating.

[00:30:36] Speaker 01:
Wouldn't that be in the province of the jury?

[00:30:38] Speaker 01:
It invaded the province of the jury.

[00:30:40] Speaker 01:
One of the constitutional rights that we have is to have a trial by jury that no... It's underbred.

[00:30:46] Speaker 02:
You have a burden.

[00:30:47] Speaker 02:
You have a burden to show that it, you know, had substantial and injurious effect.

[00:30:53] Speaker 02:
And the question we're struggling with is how does something that undermines the credibility of AP

[00:31:00] Speaker 02:
and ZF, how does that rationally create a spillover that creates a marginal difference in the credibility attack on MS?

[00:31:11] Speaker 01:
Because it's like a domino effect.

[00:31:12] Speaker 01:
Once that first domino goes down

[00:31:14] Speaker 01:
it all the sudden everything else gets affected and you think to yourself maybe these other children are like going along with the mother, yes something happened.

[00:31:21] Speaker 01:
Remember the jury was very skeptical of what was occurring in this case.

[00:31:26] Speaker 01:
They found MSB not guilty of all of them and then found acquittals on

[00:31:32] Speaker 01:
Ah, excuse me.

[00:31:34] Speaker 02:
But there's three convictions on MS.

[00:31:36] Speaker 01:
That's the problem.

[00:31:37] Speaker 01:
And the domino effect was taken away, the right to trial by jury.

[00:31:41] Speaker 02:
But you can't just say domino.

[00:31:43] Speaker 02:
What's the rational chain of thought by which a jury could say, okay, AP and ZF were covering for their mother, and how does that now impair the credibility of MS in a way that wasn't already available?

[00:32:00] Speaker 01:
Because it became a situation, you also saw that there were lawsuits.

[00:32:04] Speaker 01:
It became a situation where there were lawsuits in this case that children started to go along with their mother asking them.

[00:32:11] Speaker 01:
You see, they didn't come forward and say, hey, this happened to me.

[00:32:16] Speaker 01:
The mother started saying, did this happen to you?

[00:32:18] Speaker 01:
And from that, I know I wouldn't repeat domino effect, but it's taking away the best defense the man had.

[00:32:25] Speaker 01:
And the jury had a false narrative.

[00:32:28] Speaker 01:
They lived in a vacuum of falsehood.

[00:32:30] Speaker 01:
And that shouldn't happen under our Constitution.

[00:32:33] Speaker 01:
It shouldn't.

[00:32:34] Speaker 01:
And I realize I've taken up more time.

[00:32:36] Speaker 00:
No, we took you over.

[00:32:37] Speaker 00:
Thank you.

[00:32:37] Speaker 00:
Thank you for your arguments.

[00:32:39] Speaker 00:
Thank you to both counsel for your arguments.

[00:32:41] Speaker 00:
The case is now submitted, and that concludes our arguments for this morning.

[00:32:46] Speaker 03:
All rise.