[00:00:10] Speaker 04:
All right, our last case for argument this morning is Weissman versus Clark.

[00:00:48] Speaker 04:
Good morning.

[00:00:49] Speaker 01:
Good morning, Your Honors.

[00:00:50] Speaker 01:
May it please the Court, I'm Mark Silversmith.

[00:00:53] Speaker 01:
For Appellant Wiseman, I'd like to reserve five minutes for rebuttal.

[00:00:57] Speaker 01:
I know there are seven issues that were certified by the District Court.

[00:01:00] Speaker 01:
I'd like to focus on four of those issues.

[00:01:02] Speaker 01:
The Napuhi claim, the juror contact, the not heterosexual argument, and time remaining, the enhancement issue.

[00:01:10] Speaker 01:
Alone or together, these errors represent a stream malfunction in the straight criminal justice system, which habeas is designed to address.

[00:01:19] Speaker 01:
For the Napui error, the state court clearly erred in finding no prejudice on this claim.

[00:01:25] Speaker 01:
Both the state and the state court said that our resurrection testimony was important evidence, was strong evidence that appellant acted with sexual intent, albeit tainted.

[00:01:39] Speaker 01:
Those findings should be presumed correct.

[00:01:41] Speaker 01:
The false testimony did not just affect whether the hugs and the back rubs had sexual intent.

[00:01:48] Speaker 01:
They also affected credibility, as the attorney general now concedes.

[00:01:52] Speaker 01:
Would a juror believe KC, TB, and JK when they said a pellet acted sexually with them?

[00:02:00] Speaker 04:
I guess I'm struggling with that argument because if we have multiple victims involved in this case, and my recollection from the record is that none of the counts that the

[00:02:10] Speaker 04:
California Court of Appeals allowed to remain Involved the witness who testified falsely.

[00:02:16] Speaker 04:
Is that correct?

[00:02:17] Speaker 01:
That's correct.

[00:02:18] Speaker 04:
So then how does that witness who?

[00:02:21] Speaker 01:
Made a false statement his testimony undermine the credibility of all the other witnesses well victims if I may your honor both as the Attorney General concedes both the prosecutor and

[00:02:35] Speaker 01:
and the attorney general and the state court said it was important evidence that was used to bolster the credibility of the other witnesses.

[00:02:46] Speaker 01:
If you look in page 24 and 25 of the respondent's brief, the attorney general concedes the jury was invited to use and likely did use the testimony to lend credibility to the other's accounts.

[00:03:00] Speaker 01:
And then they concede that the DA's argument was that this is a pattern of misconduct and that the similarity between acts renders each accuser more credible.

[00:03:12] Speaker 01:
Now, if these accusers had some corroboration to them, perhaps it would be a different story.

[00:03:18] Speaker 01:
But these accusers were uncorroborated, and not only that, the state court made

[00:03:23] Speaker 01:
uh... factual findings that both had substantial impeachment the state court said t b was substantially impeached with his history of lying admitted his hallucinations he made false accusations of molestation against his mom and he said he was not molested by the appellant and the state court also said uh... as a factual matter that the trial counsel mounted a strong attack on kc's credibility of course

[00:03:51] Speaker 01:
He never remembered anything happening until he took LSD two hits and drank half a bottle of whiskey.

[00:03:59] Speaker 01:
And he accused someone who was his neighbor, unlike appellant, and he accused someone named Bill, unlike his appellant.

[00:04:06] Speaker 01:
So both of them.

[00:04:06] Speaker 04:
It just strikes me as a hard sell to say that where the jury was faced with all of that other impeachment evidence, which I grant some of it is quite compelling, that

[00:04:20] Speaker 04:
this false testimony that isn't even about whether an act did or didn't occur, but rather is about whether an act was reported to a DA before trial or not, is going to undermine the credibility of every witness in this case.

[00:04:34] Speaker 01:
Well, the state court made findings that these witnesses had credibility problems, and the state court made, and the attorney general concedes that the DA urged

[00:04:47] Speaker 01:
The DEA kept saying, lightning doesn't strike twice.

[00:04:52] Speaker 01:
It doesn't strike all these times.

[00:04:54] Speaker 01:
Now, because of the R testimony and the other witnesses, that's a pattern.

[00:05:00] Speaker 01:
And that's why you should find that KC and TB and JK are credible, because it doesn't make sense to have all these accusations.

[00:05:08] Speaker 01:
So the DA urged the jury to use it as the Attorney General concedes.

[00:05:14] Speaker 01:
So there's no Nepui case I have been able to find where a Nepui error was upheld and found harmless, where there was no corroboration, where in like,

[00:05:28] Speaker 01:
Napui and Giglio themselves.

[00:05:30] Speaker 03:
Excuse me, counsel.

[00:05:31] Speaker 03:
There was corroboration because you have not, I mean, I can understand, I most certainly could understand and find your argument more compelling if we had just the one victim, alleged victim, and one other.

[00:05:53] Speaker 03:
The one lied, and the other one's testimony was accepted, and then he says, well, look, you've got corroborating people, right?

[00:06:02] Speaker 03:
But you have a bunch of them.

[00:06:04] Speaker 03:
In addition to the one, which I think was Judge Forrest's point, you have a bunch of them.

[00:06:11] Speaker 03:
and they're all talking about very explicit acts of sexual gratification, not implicit, not spooning, if you will, but much, much more.

[00:06:27] Speaker 03:
And the jury heard that.

[00:06:29] Speaker 01:
I would beg to differ, Your Honor, respectfully.

[00:06:35] Speaker 01:
Most of the accusers were simply fatherly type affection of hugging, back rubs, massages, and spooning.

[00:06:46] Speaker 01:
Two of the accusers had overt sexual conduct.

[00:06:53] Speaker 01:
Casey talked about an incident with oral sex and TB belatedly came forward and said he touched his penis while sleeping.

[00:07:05] Speaker 01:
And then JK said that my client was drunk and masturbating in his bed.

[00:07:11] Speaker 01:
So they're all very different.

[00:07:14] Speaker 01:
Now, you know, if they all get to sit.

[00:07:16] Speaker 03:
I would disagree that those are necessarily different.

[00:07:20] Speaker 01:
Yeah, but what you're saying, Your Honor, also bolsters my point, because what you're saying is the jury used our testimony to bolster the credibility of JKNTB and KC.

[00:07:36] Speaker 03:
That wasn't mine.

[00:07:37] Speaker 03:
If you took that as what I was saying, it wasn't.

[00:07:41] Speaker 01:
I understand, but it's a two-edged sword.

[00:07:44] Speaker 01:
You're saying there's more evidence because there's other accusations, but I'm saying there was prejudice.

[00:07:50] Speaker 01:
And what you have to say in an APUI claim is there's not any reasonable likelihood the jury used our testimony.

[00:07:58] Speaker 01:
And what the attorney general said is there is a substantial likelihood that the jury used our testimony.

[00:08:04] Speaker 04:
Can we shift to the jury issue or the jury debrief issue?

[00:08:07] Speaker 04:
Yes.

[00:08:09] Speaker 04:
I think you're relying on Maddox and Remmer for clearly established federal law.

[00:08:14] Speaker 04:
Neither of those cases addressed debriefing an excused juror.

[00:08:19] Speaker 04:
So how are those cases clearly established law under the EDPA standard?

[00:08:24] Speaker 01:
Because what Andrew said last week is you don't need the facts when the principle and the holding are well established.

[00:08:31] Speaker 01:
And that's actually just a repeat of what the Supreme Court said in Marshall versus Rogers.

[00:08:36] Speaker 04:
The theory that seems to be underlying those cases when you're talking about a juror that's still active in the case is, um, infecting the juror deliberation process and sort of the fair jury.

[00:08:48] Speaker 04:
the impartial jury decision.

[00:08:51] Speaker 04:
If you're talking to a juror who has been excused from the trial process and there's no allegation that that juror has somehow kept on communicating with the jurors who are still active in the case, then that underlying theory really isn't at play, is it?

[00:09:06] Speaker 01:
Well, it is because this is argument.

[00:09:09] Speaker 01:
Closing argument is important.

[00:09:11] Speaker 01:
Statements from a prosecutor matter a great deal, as this court has said in Kajoyan.

[00:09:16] Speaker 01:
So the juror helped this prosecutor with his closing argument.

[00:09:21] Speaker 01:
And I would agree with you if they talked about the weather, if he asked for directions, if he asked to talk to her later after the trial was over, I might agree with you.

[00:09:34] Speaker 01:
And if the DA had said, it didn't matter somehow, maybe so.

[00:09:40] Speaker 01:
But the DA, when he was asked, he said, absolutely, it was important.

[00:09:44] Speaker 01:
It was helpful.

[00:09:45] Speaker 01:
I don't see how you can find a rebutting of a presumption of prejudice where the DA concedes it was helpful.

[00:09:53] Speaker 01:
So I think the state's court's finding is clearly unreasonable in that case.

[00:09:57] Speaker 02:
Well, just to circle back, the state court found that the basis for the DA's closing argument was more about the other juror note and not this conversation.

[00:10:07] Speaker 02:
And under EDPA, we have to look at the state court's determination, not just for clear error, but unreasonableness.

[00:10:16] Speaker 02:
Why isn't that enough deference to say that the state's weighing is not unreasonable?

[00:10:22] Speaker 01:
Well, there's three points at which the jury was exposed to the taint.

[00:10:29] Speaker 01:
One is the DA said absolutely it was helpful.

[00:10:33] Speaker 01:
Two, in argument he said one juror right away recognized that Leslie Kars had credibility problems.

[00:10:41] Speaker 01:
Well, that matches exactly with what the juror told the DA in their conversation, according to the investigator.

[00:10:49] Speaker 04:
I mean, it also matches with the fact that a juror during the proceedings issued a jury question on that witness.

[00:10:56] Speaker 01:
There was a jury note that was similar, but not the same.

[00:11:00] Speaker 01:
But it's improper for a DA to refer to a juror note in argument.

[00:11:07] Speaker 01:
And I cited those cases.

[00:11:10] Speaker 01:
I don't see how the state can take advantage of the DA was being unethical, but it was a different type of unethical thing, so there's no prejudice.

[00:11:20] Speaker 01:
And the third thing was the state court said quite clearly in addressing the not heterosexual argument that during trial the prosecutor repeatedly referred to the lack of adult relationships, but during argument

[00:11:35] Speaker 01:
He began to say he kept lying about his heterosexuality.

[00:11:40] Speaker 01:
Well, that was after the juror spoke with the prosecutor.

[00:11:48] Speaker 03:
But that was raised by trial counsel in his closing argument.

[00:11:59] Speaker 01:
no i i i don't know the record i read it i read it too uh... what what mister what the what trial counsel said is that if there is a man and a wife sleeping in the same bed and uh... the man masturbates that's that's okay it's also okay if it's a father who's a single father or a non-father he never used the word heterosexual heterosexual is a very uh... technical word and

[00:12:29] Speaker 01:
I would submit you don't say heterosexual in the normal course of business unless you're implying something about homosexuality.

[00:12:37] Speaker 01:
It's just yin and yang.

[00:12:39] Speaker 01:
They're joined together.

[00:12:41] Speaker 01:
And the clear point of repeated, this was repeated at least six times, that he was lying about being heterosexual when the DA, the Attorney General admits he never lied about being heterosexual.

[00:12:52] Speaker 01:
And he never used the word heterosexual.

[00:12:54] Speaker 01:
There's no evidence on that point in the record.

[00:12:58] Speaker 01:
The clear inference is that he can't be trusted.

[00:13:02] Speaker 01:
They kept linking it to trustworthiness.

[00:13:05] Speaker 01:
Heterosexuals are trustworthy.

[00:13:08] Speaker 01:
Homosexuals, bisexuals are not trustworthy.

[00:13:10] Speaker 01:
And that's exactly what we've been living with in this country with the Boy Scouts and teacher bands on gays.

[00:13:17] Speaker 01:
for most of this country's past.

[00:13:20] Speaker 01:
And it's very clear that this was a biased dog whistle to the jury to say he's not like us, he's not a straight white male who, you know, has a wife, and therefore, he's attracted to boys.

[00:13:35] Speaker 01:
And that's wrong.

[00:13:36] Speaker 01:
It's wrong, it's wrong, it's wrong.

[00:13:38] Speaker 01:
And so that's another basis for reversal.

[00:13:42] Speaker 04:
You want to save any time for rebuttal?

[00:13:43] Speaker 01:
Yes, I would.

[00:13:45] Speaker 01:
All right.

[00:13:45] Speaker 01:
All right, thank you, Your Honors.

[00:14:02] Speaker 03:
Can I ask a real question before you get going here?

[00:14:07] Speaker 00:
Can I just say, may it please the court, Mr. Swanson, on behalf of the warden.

[00:14:12] Speaker 03:
You're absolutely right.

[00:14:17] Speaker 03:
This was a messy trial.

[00:14:19] Speaker 03:
Things that were done by the prosecutor in this case should never have been done.

[00:14:26] Speaker 03:
Even, I'd like you to address at some point during your argument, his final

[00:14:32] Speaker 03:
point is that even if none of these errors, as he calls them, themselves rise to the level of a constitutional violation, when you kind of pack them all together, you do.

[00:14:50] Speaker 03:
And we do have such a doctrine.

[00:14:52] Speaker 00:
Well, the state court found that there was either no errors or the errors that did occur were insignificant and not prejudicial.

[00:15:03] Speaker 00:
And if you look at them cumulatively, they also did not concern one particular witness or a particular defense theory.

[00:15:16] Speaker 00:
They didn't amplify each other in terms of presenting cumulative prejudice.

[00:15:20] Speaker 00:
And that finding by the state court is also subject to a pedeference in this court.

[00:15:28] Speaker 00:
And it just was not unreasonable.

[00:15:31] Speaker 02:
Ms.

[00:15:31] Speaker 02:
Swanson, I also had a similar question about cumulative effect.

[00:15:37] Speaker 02:
The state court's decision was very cursory.

[00:15:40] Speaker 02:
I think it was two sentences on that point.

[00:15:44] Speaker 02:
Could it have gotten something wrong by

[00:15:48] Speaker 02:
only looking at the NAPU errors and not considering these other ones that counsel has been raising, the contact with the juror.

[00:15:58] Speaker 02:
I know there was the instructional error, there's the not disclosing the gifts to one of the witnesses.

[00:16:06] Speaker 02:
Did the state court not consider those in its cumulative error analysis and should it have?

[00:16:13] Speaker 00:
It did consider those.

[00:16:14] Speaker 00:
It considered them, obviously, individually.

[00:16:18] Speaker 00:
And then in its cumulative prejudice analysis, it found that it had only found one prejudicial error, which was then a poo error with respect to the non-overtly sexual counts.

[00:16:31] Speaker 00:
It found those prejudicial, but found those not prejudicial with respect to the remaining counts.

[00:16:35] Speaker 02:
But here's my concern is cumulative error analysis is not

[00:16:40] Speaker 02:
let me aggregate prejudicial errors, it's let me aggregate errors, and even if they're not individually prejudicial, in total, do they call into question the fairness of the trial?

[00:16:52] Speaker 02:
And with just how terse this passage is from the state court decision, I'm wondering if you believe that the court undertook that proper analysis.

[00:17:02] Speaker 00:
I believe it did.

[00:17:03] Speaker 00:
It also mentioned that it had found no other significant errors warranting prejudice.

[00:17:07] Speaker 00:
I understand your concern about doing a separate analysis about prejudice and being more thorough, but the United States Supreme Court has also said that we can't subject state courts to

[00:17:20] Speaker 00:
rules about having a very thorough, very long opinion addressing things.

[00:17:26] Speaker 00:
So it understood the claim presented, it understood the law that governed it, and it had individually reviewed these claims, considered them in the cumulative, and said that it didn't result in cumulative prejudice.

[00:17:42] Speaker 00:
And that's all that it needed to do to have a deference towards that determination.

[00:17:51] Speaker 02:
I mean, to Judge Ezra's point, there were many mistakes at this trial, including ones that resulted in the reversal of nine of the counts for conviction.

[00:18:02] Speaker 02:
And then you have this approaching an excused juror and other things.

[00:18:09] Speaker 02:
I'm wondering, do you think that the ... I was wrestling with this question, do you think that the

[00:18:17] Speaker 02:
Contact of the excused juror should go into this cumulative error analysis if the jury was none the wiser for this contact.

[00:18:27] Speaker 02:
I realize it's prosecutorial misconduct to have done it, but whether it affected the jury's deliberations, could it have?

[00:18:35] Speaker 02:
Or I'm assuming the jury didn't know that this took place.

[00:18:39] Speaker 00:
About the contact with the excused juror?

[00:18:41] Speaker 00:
Yes.

[00:18:41] Speaker 00:
No, they didn't know at all.

[00:18:42] Speaker 00:
And she had no contact with the other jurors after she was excused.

[00:18:46] Speaker 00:
And that actually there was not a finding of prosecutable misconduct.

[00:18:51] Speaker 00:
There was actually a finding that he violated a state ethical rule.

[00:18:55] Speaker 00:
And that it did not result in a biased jury because this excused jury didn't talk to the other jurors.

[00:19:03] Speaker 00:
And that the prosecutor did not change his closing argument after talking to that juror.

[00:19:09] Speaker 00:
So, and just getting back to that really quickly, the cumulative prejudice argument, the state courts individual rulings on these claims.

[00:19:24] Speaker 00:
is entitled to deference.

[00:19:26] Speaker 00:
So when the state court found that there was no prejudice on these claims, this court has to defer to that, and that has to be part of the cumulative prejudice analysis by this court, which is also itself individually subject to that ed-ped deference.

[00:19:42] Speaker 00:
If I could just quickly go to appellant's arguments on the NAPU claim, our position is that state court was absolutely right

[00:19:52] Speaker 00:
The standard for determining whether a NAPU error is material is whether that false testimony was unimportant in comparison to everything else the jury considered on a charge.

[00:20:09] Speaker 00:
In this case, we had three witnesses who testified to overtly sexual acts by weisman where sexual intent could not be disputed.

[00:20:20] Speaker 00:
their testimony alone and in conjunction with each other was more than enough evidence as to a specific intent.

[00:20:28] Speaker 00:
As to Appalance general arguments regarding the credibility of these witnesses, they not only were individually credible, I'll start with JK, he immediately ran home and disclosed the masturbation incident to his mother and they went immediately to the police.

[00:20:47] Speaker 00:
His testimony at trial

[00:20:49] Speaker 00:
about the masturbation incident was completely consistent with his disclosure and Pellant himself told his friend that he had performed that act in bed with the child.

[00:21:00] Speaker 00:
So he was completely credible in his own right.

[00:21:04] Speaker 00:
As to TB, we admit that he had, there was significant impeachment evidence against him in terms of he

[00:21:11] Speaker 00:
denied at first having been molested by the appellant, he had significant mental health issues.

[00:21:18] Speaker 00:
But the trial court made a credibility finding after watching him testify that he, despite all that, he honestly and openly admitted all of those issues and he was a very credible witness despite that.

[00:21:34] Speaker 00:
And that credibility finding by the trial court is entitled to a presumption of correctness under 2254E1, and that presumption has not been rebutted by appellant.

[00:21:48] Speaker 00:
And lastly, case C, I take issue with appellant's characterization of him having said he did not remember

[00:22:00] Speaker 00:
being molested by a pallent.

[00:22:03] Speaker 00:
He did not say that.

[00:22:04] Speaker 00:
He said he did not disclose it when he was an eight-year-old boy because a pallent scared him by telling him, don't you ever tell anyone you're a bad boy.

[00:22:14] Speaker 00:
And he felt ashamed by that and he was scared of being punished.

[00:22:19] Speaker 00:
But when he was 18 years old, he finally found the courage to disclose that, and he did to friends and family.

[00:22:27] Speaker 00:
He also came forward to the police when he saw that Mr. Weissman had been arrested.

[00:22:33] Speaker 00:
The impeachment evidence that appellant claims was strong was

[00:22:37] Speaker 00:
was not strong, it was weak, and it was even his expert on LSD even admitted that somebody wouldn't necessarily make up something that had never occurred if they were on LSD and even if they had.

[00:22:53] Speaker 00:
Once the person's not on LSD, they know that that wasn't a true thing.

[00:22:59] Speaker 00:
His expert also corroborated Casey's testimony that he wasn't hallucinating

[00:23:10] Speaker 00:
when he was taking LSD, it just made him feel very loose.

[00:23:13] Speaker 00:
And his expert said that that can happen with low doses.

[00:23:16] Speaker 00:
Somebody doesn't necessarily always hallucinate when on LSD.

[00:23:19] Speaker 00:
So that was weak.

[00:23:20] Speaker 02:
And also... Could I ask you to turn to the sexual orientation closing argument point?

[00:23:26] Speaker 00:
Yes.

[00:23:26] Speaker 00:
What is your view of this?

[00:23:31] Speaker 00:
A state court found that the factual premise underlying this argument was completely wrong.

[00:23:37] Speaker 00:
The prosecutor did not argue anywhere that Mr. Weisman was gay because there was no evidence that he was gay.

[00:23:46] Speaker 00:
The prosecutor certainly did not argue that because he was gay, he was therefore a child molester.

[00:23:53] Speaker 00:
That was not argued.

[00:23:56] Speaker 00:
What the prosecutor was arguing was about Mr. Weissman's statements to several of his child victims and several of their mothers and even the police where he tried to convince people that he had been in romantic relationships with women.

[00:24:15] Speaker 00:
And the prosecutor was discussing that in terms of one of Mr. Weissman's luring techniques.

[00:24:24] Speaker 00:
And that was to draw these children and their mothers and to reassure them that he was interested in adults.

[00:24:32] Speaker 00:
He wasn't interested in children.

[00:24:33] Speaker 00:
He wanted to obscure his true intent towards their children.

[00:24:37] Speaker 00:
And Mr. Weissman himself is the one who chose to put himself out there as a heterosexual.

[00:24:44] Speaker 00:
There's no evidence that he was interested in any adults.

[00:24:49] Speaker 00:
And I also take issue with appellant characterizing the prosecutor's argument as changing after he talked to the excused juror and that not mentioning that he had never had, that Mr. Weissman had no adult relationships, that's not true.

[00:25:01] Speaker 00:
The prosecutor did say that several times in his closing argument, he emphasized that there was no evidence that Mr. Weissman had ever had a romantic relationship

[00:25:13] Speaker 00:
with any women or men.

[00:25:17] Speaker 00:
The prosecutor's point was he was only interested sexually in children.

[00:25:22] Speaker 00:
So that would be my response to that claim.

[00:25:27] Speaker 00:
And the state court's opinion is reasonable based on the record that was before it.

[00:25:34] Speaker 00:
It went through the closing argument and it pointed out that the prosecutor was just arguing about Weisman's intent with respect to holding himself out as a heterosexual male.

[00:26:03] Speaker 00:
As far as appellants claim that the prosecutor said that only heterosexuals can be considered trustworthy, the prosecutor did not say that.

[00:26:13] Speaker 00:
What he was saying was he was repeating Mr. Weissman's statements and that Mr. Weissman himself was saying that he was heterosexual to victims and their mothers.

[00:26:24] Speaker 00:
because he himself thought that would make him appear more trustworthy around their children.

[00:26:30] Speaker 00:
So the prosecutor was not himself making any kind of statement about that.

[00:26:38] Speaker 00:
I would just like to end by saying that the evidence in this case was significant.

[00:26:45] Speaker 00:
There were multiple, several witnesses who all testified to similar acts by Mr. Weissman.

[00:26:53] Speaker 00:
His behavior towards young boys spanned many, many, many years.

[00:26:59] Speaker 00:
Most of these victims did not even know each other, but they told very chillingly similar stories about the way Mr. Weissman befriended them.

[00:27:08] Speaker 00:
Drew them in and then took advantage of them by isolating them and making them very vulnerable.

[00:27:13] Speaker 00:
Sometimes by giving them sleeping pills so that they would not wake up when he was molesting them.

[00:27:19] Speaker 00:
I would ask this court to affirm the district court's finding that the state court's determination on all of these issues was reasonable.

[00:27:30] Speaker 00:
and that appellant has not sustained his burden of showing that he's entitled to relief on his federal habeas claims.

[00:27:39] Speaker 00:
Unless there are any further questions, I'm prepared to submit the matter.

[00:27:43] Speaker 00:
Thank you, counsel.

[00:27:53] Speaker 01:
Thank you, Your Honor.

[00:27:53] Speaker 01:
I do think that, as you have stated, there's a lot of problems in this case, and cumulatively or individually, they do establish prejudice.

[00:28:04] Speaker 01:
Mr. Wiseman did not say, trust me.

[00:28:07] Speaker 01:
He did not say, I'm a heterosexual.

[00:28:10] Speaker 01:
Those are made-up words, as the Attorney General agrees.

[00:28:14] Speaker 01:
He did make a couple lies about being in relationships specifically with his housekeeper and being past married.

[00:28:26] Speaker 01:
He did, according to friends, have a serious girlfriend in college.

[00:28:31] Speaker 01:
Your Honor asked about whether the DA's comments were in response to the defense attorney's comments.

[00:28:41] Speaker 01:
Most of the DA's comments about Mr. Weissman lying about being a heterosexual, which he never did, were made in the opening part of the DA's argument.

[00:28:53] Speaker 01:
There was one comment that was about the committed heterosexual relationship, which was made in rebuttal.

[00:29:00] Speaker 01:
But most of them were made in the opening part of the DA's argument.

[00:29:05] Speaker 01:
And the state court did not address that latter comment that he's different because he's not in a committed heterosexual relationship and you can't trust him.

[00:29:14] Speaker 01:
So part of that is an unreasonable finding of fact under E2, which would take it out of the Edpa deference.

[00:29:25] Speaker 01:
As far as the jury issue, the DA said it absolutely was useful to him.

[00:29:32] Speaker 01:
It made him more confident.

[00:29:34] Speaker 01:
I don't see how you can rebut the presumption of prejudice where the DA says it helped him.

[00:29:43] Speaker 01:
I do feel the Attorney General is correct, and I said this in my brief, that there was partial corroboration of the JK count because he did admit masturbating in the bed, but there was no corroboration of the TB count.

[00:29:57] Speaker 01:
He had falsely accused his mother.

[00:29:59] Speaker 01:
The state court said he had been substantially impeached.

[00:30:02] Speaker 01:
That finding should be deferred to.

[00:30:04] Speaker 01:
The trial court did make a finding with respect to his credibility on the Brady issue, but not with respect to the allegations of molestation.

[00:30:13] Speaker 04:
All right, counsel, you've exceeded your time.

[00:30:15] Speaker 01:
Thank you so much for your patience and your questions and argument.

[00:30:20] Speaker 01:
Thank you.

[00:30:21] Speaker 04:
Thank you.

[00:30:22] Speaker 04:
I thank council for their arguments in this matter.

[00:30:24] Speaker 04:
Weissman versus Clark is submitted.

[00:30:27] Speaker 04:
I realized that at the outset, I missed one of our submitted on the briefs case and that's cross versus RLI insurance company.

[00:30:33] Speaker 04:
And with that, we are in recess for the day.