[00:00:07] Speaker 06:
Good morning, and welcome to the Richard Chambers Courthouse here in Pasadena.

[00:00:16] Speaker 06:
This is the time set for the case to be reheard en banc of David Scott Dietrich versus Ryan Thornell.

[00:00:25] Speaker 06:
It looks like we have Arizona coming to California here today.

[00:00:30] Speaker 06:
So the parties are ready to proceed.

[00:00:33] Speaker 06:
You may come forward.

[00:00:37] Speaker 06:
And just before you begin, I just want to test.

[00:00:39] Speaker 06:
Judge Gould, can you hear me?

[00:00:41] Speaker 07:
Yes, I can hear you perfectly.

[00:00:44] Speaker 06:
Judge Thomas, can you hear us?

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

[00:00:47] Speaker 06:
OK, great.

[00:00:47] Speaker 06:
Thank you.

[00:00:48] Speaker 06:
Thank you.

[00:00:49] Speaker 02:
May it please the court and Mr. Lewis.

[00:00:52] Speaker 02:
My name is Amy Armstrong, and this is Emily Skinner.

[00:00:55] Speaker 02:
We're from the Arizona Capital Representation Project, and we represent Mr. Dietrich in these proceedings.

[00:01:02] Speaker 02:
I will do my best to reserve three minutes for rebuttal.

[00:01:06] Speaker 02:
And I'd like to focus my comments today on the ineffective assistance of counsel at sentencing claim and the causal connection claim.

[00:01:15] Speaker 02:
Dave Dietrich was sentenced to die after his counsel spent 10 and a half hours preparing for his sentencing.

[00:01:22] Speaker 02:
Counsel failed to conduct a basic life history investigation.

[00:01:26] Speaker 02:
He did not collect records, he did not interview witnesses, he did not explore challenges to the aggravating factor, nor did he consult with expert witnesses.

[00:01:35] Speaker 02:
This is despite the fact that a pre-sentence report raised red flags that Mr. Dietrich suffered childhood trauma and resulting mental health problems.

[00:01:46] Speaker 02:
In initial post-conviction, counsel recognized the Sixth Amendment failure and proffered important social history information, including evidence of a complex birth defect and repeated childhood head traumas, and a neuropsychological report demonstrating that Mr. Dietrich had impaired brain functioning

[00:02:04] Speaker 02:
that would have been worse at the time of the crime, and a conclusion that Mr. Dietrich's, quote, decision-making, especially when compromised by alcohol, was not based on any consequence-driven thought process, but rather a learned behavior that bypassed right or wrong, end quote.

[00:02:22] Speaker 04:
Council, could you help me for a second and point out what particular brain defect was found, what objective evidence there was of any brain dysfunction?

[00:02:34] Speaker 02:
Absolutely your honor so in post conviction the social history witnesses provided testimony about Motorcycle accidents that were not in front of the sentencer and the neuropsychological testing conducted by dr. Briggs included what still some consider the gold standard the Halstead right hand battery for neuropsychological functioning and Mr.. Dietrich scored impaired on 30% of the subtests of the Halstead right hand and

[00:03:03] Speaker 02:
And what was important is that included his performance on the category test, which is a test that measures executive functioning.

[00:03:11] Speaker 02:
And Dr. Briggs gives vivid account in his report of how remarkable the impairment was on the category test, because Mr. Dietrich would actually intellectually understand the correct response, know the correct response, but he would not be able to curb his impulse to pull the lever on the incorrect response.

[00:03:29] Speaker 02:
and Dr. Briggs found that behavior very noteworthy.

[00:03:33] Speaker 02:
Dr. Briggs also opined that these impairments created a, quote, mindset where instinct took over and reason could not be accessed.

[00:03:44] Speaker 04:
Point out to any physical impairment that Dr. Briggs found.

[00:03:51] Speaker 02:
Well, Your Honor, with the neuropsychological,

[00:03:55] Speaker 02:
Perhaps your honor is asking for if there was brain imaging or something like that.

[00:04:00] Speaker 04:
Was the brain damage found because he said there was a recovered, this is a recovered, recovered from what?

[00:04:08] Speaker 04:
From what condition?

[00:04:09] Speaker 04:
I had difficulty finding any condition from which he recovered or that he hadn't recovered indeed when Dr. Boyer saw him in 1991.

[00:04:19] Speaker 02:
Right.

[00:04:20] Speaker 02:
Well, a couple of things.

[00:04:21] Speaker 02:
So when Dr. Boyer saw him, Dr. Boyer was not a neuropsychologist.

[00:04:25] Speaker 02:
did not perform any neuropsychological testing.

[00:04:28] Speaker 02:
She only conducted personality testing and clinical interviewing.

[00:04:32] Speaker 02:
In terms of the actual damage, what the neuropsychologists looked at... Dr. Bori did find that there was no functional loss.

[00:04:42] Speaker 02:
She found that there was no impairment, but she also didn't test for impairment.

[00:04:47] Speaker 02:
So our position on that was that she wouldn't made it up.

[00:04:50] Speaker 02:
Well, no, but she based on what she did, she found no impairment, but she's not a neuropsychologist and she didn't administer any neuropsychological testing.

[00:04:58] Speaker 02:
And in fact, the district court found that no evidence either in state court or in district court undercut the evidence that Mr. Dietrich has neuropsychological damage.

[00:05:10] Speaker 02:
So that really wasn't an issue for the district court.

[00:05:13] Speaker 02:
For the district court, it was the consequence.

[00:05:15] Speaker 02:
But in terms of what Dr. Briggs looked at to explain the damage that he saw on the Halstead right-hand test was the repeated, well, the head traumas in childhood, the repeated toxic exposures.

[00:05:32] Speaker 02:
Mr. Dietrich was encouraged by his stepfather to consume massive amounts of alcohol.

[00:05:38] Speaker 02:
beginning at a very early age, around 11 years old.

[00:05:41] Speaker 02:
And even though the sentencer knew that Mr. Dietrich began drinking at a young age, the sentencer did not know the quantities until post-conviction.

[00:05:50] Speaker 02:
So the quantities were massive.

[00:05:51] Speaker 02:
The motorcycle accidents were unknown of before post-conviction.

[00:05:54] Speaker 02:
And the childhood trauma, in addition to really the other important piece that Dr. Briggs had that the court experts at the sentencing didn't have,

[00:06:08] Speaker 02:
was the significance of

[00:06:26] Speaker 02:
Extended periods of time Yes, and that is confirmed later in federal habeas by dr. Coneff who is a medical doctor a geneticist and an expert in fetal alcohol related type illnesses or diseases and he found that mr. Dietrich's impairments were consistent with alcohol related neurological deficits and

[00:06:51] Speaker 02:
So yes, all of these things, this constellation of factors, really informed.

[00:06:55] Speaker 04:
Is your answer that cleft palate indicates brain injury?

[00:06:59] Speaker 02:
It can, Your Honor.

[00:07:01] Speaker 04:
Did any doctor find that connection between the two?

[00:07:07] Speaker 02:
Yes, they did.

[00:07:09] Speaker 02:
More explicitly in habeas, but even in post-conviction, Dr. Briggs was looking at all of this evidence together.

[00:07:15] Speaker 04:
OK, thank you.

[00:07:16] Speaker 04:
You answered my question as well as you could.

[00:07:22] Speaker 02:
So as we touched on, there was quite a bit of differences between the sentencing evidence and the evidence presented in post-conviction.

[00:07:33] Speaker 02:
It's important to remember that the post-conviction court provided no investigative funding for Mr. Dietrich.

[00:07:40] Speaker 02:
So the social history evidence that was greater developed later in habeas was really inhibited by the fact that there was never a mitigation specialist or investigative funding provided.

[00:07:52] Speaker 02:
in post-conviction.

[00:07:54] Speaker 02:
Despite that, post-conviction counsel was able to obtain declarations from Mr. Dietrich's mother.

[00:08:01] Speaker 02:
She's the one that goes into more detail about the severity of the cleft palate, the resulting surgeries.

[00:08:07] Speaker 08:
And also his stepfather skip murdy where we get more information about the alcoholics Consumption that was happening during childhood can I ask you this I can do we can divide the evidence really into two rough categories one is basically sort of what happened to family history and so on and the other is the professional diagnoses for the moment addressing the just the narrative history how much

[00:08:33] Speaker 08:
was before the sentencing judge on narrative history of what happened to him compared to what came in later.

[00:08:40] Speaker 08:
What additional evidence comes in?

[00:08:42] Speaker 02:
Yes, Your Honor.

[00:08:44] Speaker 02:
There is additional evidence.

[00:08:46] Speaker 02:
Admittedly, it's not as much as in habeas because it was not funded.

[00:08:50] Speaker 02:
But what Post-Conviction Counsel was able to develop through speaking with Mr. Dietrich's mother and stepfather was that, as I said earlier, although they knew Mr. Dietrich was born with a cleft palate,

[00:09:02] Speaker 02:
They didn't know about the severity of the condition, the multiple surgeries, the separations, the excessive bleeding down the throat that caused Mr. Dietrich to stop breathing for an indeterminate amount of time.

[00:09:15] Speaker 02:
The sentence are new of childhood abuse, but did not know that Mr. Dietrich received the worst of it because of his bedwetting or that his stepmother would call him pissy baby and hang his soiled sheets from the windows or that she dyed her hair to match the children and forbade them from mentioning her mother.

[00:09:32] Speaker 02:
The sentencer didn't know that when Mr. Dietrich finally was reunited with his mother after years of this abuse that he was never the same again.

[00:09:40] Speaker 02:
He simply was not the same child.

[00:09:42] Speaker 02:
As I mentioned, the sentencer knew of the drinking but didn't know the quantities.

[00:09:47] Speaker 02:
The sentencer, those are the main social history, the new social history evidence that came out in post-conviction.

[00:09:55] Speaker 02:
But again, our position is that it was unreasonably limited

[00:09:59] Speaker 06:
Due to the state courts refusal to provide investigative funding And on the professional diagnosis was there something different from before and later, can you highlight?

[00:10:12] Speaker 06:
You think are the most significant yes, your honor.

[00:10:15] Speaker 02:
I I think what's what's most significant is this a few things one is that

[00:10:24] Speaker 02:
Dr. Boyer says, as Judge Bea was mentioning, says that there's no cognitive dysfunction.

[00:10:33] Speaker 02:
Dr. Briggs says,

[00:10:34] Speaker 02:
There is cognitive dysfunction.

[00:10:36] Speaker 02:
He says it's recovered.

[00:10:38] Speaker 05:
But he also says that the performance was in the normal range of neuropsychological function.

[00:10:46] Speaker 05:
That's a quote.

[00:10:47] Speaker 05:
And the score on the general neuropsychological deficit scale is within the normal range.

[00:10:55] Speaker 05:
And that's repeated again on page six of the report.

[00:11:00] Speaker 05:
The improvement in function occurs over time from the childhood traumas, physical traumas at least.

[00:11:11] Speaker 05:
So why are they really different in kind?

[00:11:16] Speaker 02:
You're absolutely correct, Judge Graber, and here's why we think it's very different.

[00:11:21] Speaker 02:
So the general measure is looking at everything.

[00:11:25] Speaker 02:
It's looking at how we hear, how we see, you know, a lot of neuropsychological functions that aren't necessarily as relevant or as weighty when it comes to assessing moral culpability in a criminal case.

[00:11:41] Speaker 02:
But where he was impaired plainly was in the frontal lobe and in his executive functioning.

[00:11:48] Speaker 02:
And Dr. Boyer, without doing any neuropsychological testing, says there's an absence.

[00:11:54] Speaker 02:
Dr. Briggs says that generally he's in the normal range now.

[00:12:00] Speaker 02:
At that point, he had been incarcerated.

[00:12:01] Speaker 02:
Mr. Dietrich had been incarcerated for over 11 years.

[00:12:05] Speaker 02:
We expect healing because there was no longer alcohol access to drugs and alcohol.

[00:12:13] Speaker 02:
So we know that Dr. Briggs explicitly says that's a recovered picture.

[00:12:18] Speaker 02:
We also know that Dr. Briggs, and this is a quote at 5 ER 1198, there is likely an interaction between his emotional status and his mild neurological deficits causing greater overall impairment in function.

[00:12:34] Speaker 02:
And we believe that's an important conclusion in this case because it recognizes not only this organic brain damage, this neuropsychological deficit, it's not acting alone, but it's in concert

[00:12:48] Speaker 02:
with the trauma and his inability to emotionally regulate.

[00:12:52] Speaker 02:
And then lastly and importantly, this is all connected to the crime because the conclusion finds that these impairments would be aggravated.

[00:13:03] Speaker 02:
They would be much worse when consuming alcohol.

[00:13:06] Speaker 02:
And there's no dispute in the record that Mr. Dietrich and his co-defendant consumed copious amounts of alcohol that night and were highly intoxicated.

[00:13:16] Speaker 06:
Can I ask you about this recovered picture?

[00:13:20] Speaker 06:
Because it looks like Dr. Briggs' comment was related to Mr. Dietrich's functioning and represented what he called a recovered picture.

[00:13:33] Speaker 06:
Is that right?

[00:13:33] Speaker 06:
And I'm trying to understand the significance of that and whether it is significant when Dr. Briggs was retained to opine

[00:13:44] Speaker 06:
on Mr. Dietrich functioning in 2002, not his functioning in 1989.

[00:13:54] Speaker 06:
Help me understand the significance of that.

[00:13:58] Speaker 02:
Yes, Your Honor.

[00:13:59] Speaker 02:
I mean, I think that's exactly at the center of it is really in all of these cases, it's not uncommon that we're having to do psychological and neuropsychological assessments

[00:14:11] Speaker 02:
years, sometimes decades after the crime.

[00:14:13] Speaker 02:
And so what we're asking forensic experts to do is a retrospective evaluation in essence.

[00:14:24] Speaker 02:
In a perfect world, sentencing counsel would have retained a neuropsychologist in light of the red flags in the PSR and would have undertaken this neuropsychological testing closer to the time of the crime.

[00:14:38] Speaker 02:
So we would have a clearer picture of what that impairment looked like then.

[00:14:44] Speaker 02:
But what we have is testing done a decade later, and we're still seeing impairment on 30% of these tests in the areas that are very important.

[00:14:56] Speaker 02:
So to me, what the recovered picture means is that even after healing, we still see damage.

[00:15:04] Speaker 02:
And what Dr. Briggs was saying as I read his report,

[00:15:07] Speaker 02:
that we would have seen more earlier and if this court finds that the state court was unreasonable under 2254 D1 or D2 for the way that it analyzed Strickland in light of this evidence then you also get to look at the evidence in federal court which bolsters dr. Briggs conclusion nothing that the experts found in federal habeas was intention with or undermined even the district court found

[00:15:37] Speaker 02:
that there was no evidence to undercut the defense expert's findings that Mr. Dietrich had cognitive impairment.

[00:15:45] Speaker 02:
And remember, these tests are done even a decade after the first.

[00:15:49] Speaker 02:
So it's pretty powerful evidence.

[00:15:51] Speaker 02:
I think it's pretty, a plain reading of this evidence shows that Mr. Dietrich continues to be impaired even after his brain

[00:15:59] Speaker 02:
had the opportunity to recover for decades.

[00:16:02] Speaker 05:
Counsel, you mentioned Strickland, which of course is key here.

[00:16:05] Speaker 02:
Sure.

[00:16:06] Speaker 05:
And assuming that we agree with you that counsel's performance was deficient, I'd appreciate your addressing the prejudice prong.

[00:16:17] Speaker 05:
Why was this prejudicial in light of the heinousness of the crime and the other factors?

[00:16:23] Speaker 02:
Yes, Your Honor, absolutely.

[00:16:25] Speaker 02:
So under Strickland, the reason this was prejudicial

[00:16:29] Speaker 02:
is really twofold.

[00:16:32] Speaker 02:
This was sort of classically mitigating evidence.

[00:16:35] Speaker 02:
When you look at the U.S.

[00:16:36] Speaker 02:
Supreme Court's cases where they have found relief under D-1, D-2, Wiggins, Porter, Rompia, Sears, you see

[00:16:45] Speaker 02:
organic brain damage as a common thread.

[00:16:48] Speaker 02:
It is a very powerful mitigator.

[00:16:51] Speaker 02:
It would have mattered.

[00:16:52] Speaker 02:
It would have strengthened the G1 mitigating factor, which the court already found on the evidence before it would have given it much more weight.

[00:17:00] Speaker 02:
Notably, the reason that G1 was dismissed in terms of its weightiness was because there wasn't any causal connection.

[00:17:07] Speaker 02:
Well, let me frame that more specifically.

[00:17:14] Speaker 02:
the weight of G1 was minimized because the sentencer found that Mr. Dietrich was cognizant, aware of his surroundings at the time.

[00:17:22] Speaker 02:
So the Arizona courts, particularly at this time, were looking very focus-ly, almost myopically, at the connection between any impairments, any abuse, and the criminal act.

[00:17:35] Speaker 02:
And so being able to demonstrate that Mr. Dietrich, between his emotional dysregulation and his cognitive impairments,

[00:17:44] Speaker 02:
and his intoxication

[00:17:54] Speaker 02:
There's only one aggravator, F6.

[00:17:58] Speaker 02:
Both prongs were found here, especially cruel and especially heinous or depraved.

[00:18:02] Speaker 02:
This is a weighty aggravator.

[00:18:04] Speaker 02:
We don't deny that.

[00:18:05] Speaker 02:
But the same evidence, the same mitigating evidence about Mr. Dietrich's neuropsychological functioning and all the other things that Dr. Briggs found relevant to that would have reduced the weight because both F6 cruelty and F6 heinousness or depravity require that the defendant's state of mind

[00:18:24] Speaker 05:
be taken into account and so That's why we find we believe that there's actually very weighty evidence about his state of mind though in terms of the things that he said Afterwards and and so forth that suggests that it was not an impulsive act.

[00:18:46] Speaker 05:
So Do you think it would have changed that calculus?

[00:18:49] Speaker ?:
I

[00:18:49] Speaker 02:
Well, we do believe that even if you take the co-defendant Alan Charlton's word completely for what happened that night, which we believe is very problematic, but if we do, this still fits in to the pattern or the concern that Dr. Briggs had about Mr. Dietrich's functioning in that there's an emotionally dysregulated situation.

[00:19:16] Speaker 02:
There's anger over bad drugs.

[00:19:18] Speaker 02:
There's extraordinary intoxication.

[00:19:20] Speaker 02:
And then the impairments are always there.

[00:19:23] Speaker 02:
We do see this crime as impulsive in terms of, I believe,

[00:19:28] Speaker 02:
Your hardest part for me, okay?

[00:19:30] Speaker 03:
I don't see this as an impulsive crime there seemed to be so much time to stop I hate to interrupt you, but I know this is an important part for me, so I'm listening carefully Okay, how do we get to impulsivity on this yes?

[00:19:42] Speaker 02:
Absolutely, so here's here's how and and this is really based on the record so I don't think there's any issue with You know this court being able to consider these types of facts and

[00:19:53] Speaker 02:
So the evidence at the house that Mr. Dietrich was making threats, the threat, I'll kill you, which was used to support premeditation.

[00:20:07] Speaker 02:
When you really look at that evidence, that was overheard from a witness who was in a separate room and didn't know who was talking.

[00:20:15] Speaker 02:
And the witnesses who were in the room

[00:20:17] Speaker 02:
I believe it was Tammy Winsett who was talking to Mr. Charlton, and he was the one who was making threats about killing.

[00:20:24] Speaker 02:
So that's an important piece of evidence that this wasn't impulsive, that it was premeditated.

[00:20:29] Speaker 02:
I'm sorry to interrupt you.

[00:20:31] Speaker 06:
I just need to check because I don't see the two judges on and I want to make sure that they're listening to this.

[00:20:40] Speaker 06:
Sure, so we can just take a moment, please.

[00:20:42] Speaker 06:
I'll take a sip of water.

[00:21:29] Speaker 02:
recording in progress.

[00:21:34] Speaker 06:
Just to school can you hear me.

[00:21:36] Speaker 07:
Now you have my screen was frozen for.

[00:21:40] Speaker 06:
Yes, but I can hear not just Thomas.

[00:21:47] Speaker 06:
Just Thomas can you hear me.

[00:21:54] Speaker 06:
Yes, thanks sorry.

[00:21:57] Speaker 06:
You can put 20 more seconds on the clock, if that's possible.

[00:22:01] Speaker 06:
And then Judge Kristen, I'm sorry to have interrupted you.

[00:22:05] Speaker 06:
You can proceed.

[00:22:06] Speaker 03:
I think we were, I was piggybacking on Judge Graber's question, actually.

[00:22:09] Speaker 03:
I just asked you to focus on impulsivity, and you were mentioning the reasons that you thought that there was

[00:22:15] Speaker 03:
indications that someone else, the Charlton, had been the person threatened to kill her before she left the home.

[00:22:23] Speaker 03:
Right.

[00:22:24] Speaker 03:
And what I started to say I think about the time we got the interruption from the screen was that there's other evidence that she was led from the home at Knife Point and that he led her, Dietrich led her from the home at Knife Point, hence my

[00:22:39] Speaker 03:
And it's hard for me, maybe you can help me out with this, it's hard for me to know how long this took.

[00:22:44] Speaker 03:
But it strikes me, and I really looked at the record on that point, but it strikes me, and this is where I think I interrupted Judge Graber's question, forgive me, that this was not an impulsive, it took a long time, there was a lot of opportunity to stop, and they didn't stop.

[00:23:00] Speaker 03:
That's my hangup on this part of your argument.

[00:23:04] Speaker 02:
I understand your question.

[00:23:05] Speaker 03:
So this goes to Judge Graber's cruel, you know, it's the aggravator, cruel, depraved.

[00:23:09] Speaker 02:
Yes, your honor.

[00:23:09] Speaker 02:
I understand.

[00:23:11] Speaker 02:
So you mentioned the difficulty of ascertaining the time in the record.

[00:23:15] Speaker 02:
This is another part of Charlton's testimony that's very problematic.

[00:23:19] Speaker 02:
We know from the record that 9-1-1 is called, I believe, around 1-23 in the morning.

[00:23:27] Speaker 02:
And we know that Mr. Dietrich and Mr. Charlton don't show up at Carbonell's until somewhere between 4 and 6-30.

[00:23:35] Speaker 02:
There's a lot of time unaccounted for

[00:23:38] Speaker 02:
This is why Phil Schell's testimony was so important and we believe credible because his testimony lined up better with the timeline in terms of how long the parties were missing from the house.

[00:23:53] Speaker 02:
The other thing that was really compelling about Phil Schell, completely unusual for a jailhouse confession type evidence,

[00:24:01] Speaker 02:
is that he had no benefit from testifying.

[00:24:05] Speaker 03:
I think you've made that point, and I think persuasively.

[00:24:08] Speaker 03:
He's not the typical jailhouse informant.

[00:24:11] Speaker 03:
I appreciate that point.

[00:24:12] Speaker 03:
But even looking at his testimony, how long do you put this sequence?

[00:24:16] Speaker 03:
Where do you peg it?

[00:24:17] Speaker 02:
Well, I think it's just a different crime if Charlton's confession is the actual truth.

[00:24:25] Speaker 03:
OK, but now that's kind of switching courses.

[00:24:27] Speaker 03:
I was trying to get back to the

[00:24:29] Speaker 03:
the cruel and depraved and how long this all took.

[00:24:31] Speaker 03:
It seems to me it was a very protracted period.

[00:24:34] Speaker 03:
She would have been terrified from the time she was led from the home at 9.

[00:24:37] Speaker 02:
The truth is we just don't know, Your Honor.

[00:24:38] Speaker 02:
We really don't know.

[00:24:40] Speaker 03:
But you're arguing on hostility, though, and that's the problem.

[00:24:43] Speaker 02:
Here's what we do know.

[00:24:44] Speaker 02:
If we take Alan Charlton's testimony as truth, we know that he describes looking over while he's driving Ms.

[00:24:52] Speaker 02:
Souter being attacked.

[00:24:53] Speaker 02:
I mean, rapid succession.

[00:24:55] Speaker 02:
When you look at the Arizona Supreme Court's cases, even on a special cruelty, and you look at cases with a lot of stabbings, Bocharski is, State v. Bocharski is one, State v. Montano, there was 179 stabbings.

[00:25:08] Speaker 02:
So the stab wounds, these kinds of things, can't always tell the full story.

[00:25:14] Speaker 02:
We don't know how long they were in the car exactly, but we do know that whatever happened, if we take Allen's, Charlton's testimony is true.

[00:25:23] Speaker 02:
Happened quickly now there's no doubt wasn't there a completely different witness who testified that Your client threatened to kill her on the way to the car Your honor we I will double-check that but my memory is that the witness who says the killer the witness who provides that testimony Was in the other bedroom and then the one that was out says that Charlton says it

[00:25:53] Speaker 02:
But but to the point what I was about to say was that there's no doubt that this is that this is cruel and our position has never been that That there would be zero evidence of a special cruelty if counsel had been affected our position has been that their weight would have been reduced and we also think the weight would have been greatly reduced on the

[00:26:14] Speaker 02:
on the heinousness or depravity finding.

[00:26:16] Speaker 03:
Right, but you're particularly arguing, I hate to beat this point, but you are affirmatively arguing impulsivity.

[00:26:23] Speaker 03:
At least you did on remand.

[00:26:25] Speaker 03:
And that's why it's difficult for me.

[00:26:27] Speaker 03:
I don't know how prolonged it was.

[00:26:30] Speaker 03:
It's very hard for me to see impulsive.

[00:26:31] Speaker 02:
It's very hard for us to tell, Your Honor, on the record.

[00:26:33] Speaker 02:
But I will say it is impulsivity, but it's also what's important about Dr. Briggs finding.

[00:26:38] Speaker 03:
Impulsivity, just give me your best shot at that.

[00:26:40] Speaker 03:
It's impulsive because why?

[00:26:42] Speaker 02:
It's impulsive because it was not premeditated like a lot of the other cases we see, for example, Jones and Kaier where there's a robbery and there's a plan and there's preparation and they know they're going to take someone's life.

[00:26:56] Speaker 02:
This was somebody losing their temper, losing their temper and not being able to regulate.

[00:27:02] Speaker 02:
And what's important is that Dr. Briggs doesn't just talk about impulsivity, but he also talks about that inability to redirect

[00:27:12] Speaker 02:
And I think that that is an important part of this.

[00:27:14] Speaker 02:
I don't think the term impulsivity quite captures the impairment.

[00:27:18] Speaker 02:
It's the inability to change a course of action once it gets started.

[00:27:22] Speaker 02:
And I do think that that's what we see here even under Charlton's version of events.

[00:27:26] Speaker 02:
If I may, just because I'm running out of time, I'd like to touch on the causal connection claim.

[00:27:34] Speaker 02:
So we believe the court should grant a certificate of appealability on the causal connection claim because

[00:27:40] Speaker 02:
Mr. Dietrich has made a substantial showing under Lockett and Eddings.

[00:27:44] Speaker 02:
The district court erroneously found this claim procedurally defaulted.

[00:27:48] Speaker 02:
Our position is that the Arizona Supreme Court's independent review exhausted this claim, and especially in Mr. Dietrich's case, because he specifically argued on direct appeal that the judge failed to adequately weigh and give effect to the mitigating circumstances.

[00:28:06] Speaker 02:
And he also cited Lockett in his reply brief on direct appeal,

[00:28:09] Speaker 02:
to argue that the Court may not constitutionally limit mitigation on any grounds.

[00:28:17] Speaker 02:
The District Court alternatively found that the Superior Court and the Supreme Court both considered and gave effect to the mitigating evidence.

[00:28:30] Speaker 02:
The reason that we don't believe that is so in the context of this case is that the state argued all throughout sentencing that Mr. Dietrich's evidence of childhood abuse was not mitigating without a causal nexus to the crime.

[00:28:45] Speaker 02:
They argued that on direct appeal, and they cited State v. Stokely and State v. Wallace, which directly hold that a difficult family background are not mitigating without a causal connection.

[00:28:56] Speaker 02:
The Arizona Supreme Court identified in its ruling the mitigation that it did consider, which included sentencing, disparity, remorse, and Mr. Dietrich being in an alcoholic state at the time of the crime, but didn't even mention at all his childhood trauma or his longstanding issues with addiction.

[00:29:14] Speaker 02:
And the Supreme Court emphasized in its one paragraph discussion of the aggravation and the mitigation

[00:29:22] Speaker 02:
that the mitigation was less significant than it seems because Mr. Dietrich was cognizant of his surroundings and able to carry on a conversation during the crime.

[00:29:32] Speaker 02:
When you look at McKinney and you look at Mr. Dietrich's cases side by side, they're strikingly similar in terms of the court's treatment of the causal connection evidence or the mitigation evidence and the causal connection violation.

[00:29:48] Speaker 02:
So we would just really like this court to take a hard look at that claim as well.

[00:29:53] Speaker 06:
Did you want to reserve the rest of the time?

[00:29:55] Speaker 02:
I would if there's no further questions.

[00:29:56] Speaker 02:
Yes.

[00:30:04] Speaker 00:
It'll worth me for a moment.

[00:30:05] Speaker 00:
I'm just going to move a few papers here.

[00:30:08] Speaker 00:
But Madam Chief, and may it please the court, I appreciate my friend focusing on claim B.

[00:30:14] Speaker 00:
Which is the exhausted claim that trial counsel was ineffective in state your name?

[00:30:20] Speaker 00:
I'm sorry madam chief.

[00:30:21] Speaker 00:
My name is Jason Lewis.

[00:30:22] Speaker 03:
I represent respondent at police Excuse me for interrupting you again, but could you maybe move the microphones up a little bit so we can hear you a little bit better?

[00:30:30] Speaker 00:
Yeah, I don't want to be misheard or unheard that would be a trouble so I appreciate

[00:30:37] Speaker 00:
My friend focusing on the exhausted claim, claim B. And if I can shift the court's focus on that claim, the proper focus is whether or not the state post-conviction court unreasonably applied Strickland v. Washington.

[00:30:54] Speaker 00:
And in preparing for this, I watched over this court's argument in 2013.

[00:31:01] Speaker 00:
And I think a lot of the questions were to the point on this matter.

[00:31:06] Speaker 00:
And it's whether or not there is an unreasonable determination, not an incorrect one.

[00:31:13] Speaker 00:
And that unreasonable facet of the inquiry is dispositive here.

[00:31:19] Speaker 00:
If you just bear with me a moment.

[00:31:25] Speaker 00:
It sounds like, at least from the court's questions to my friend, that a lot of this hinges on how the state post-conviction court

[00:31:35] Speaker 00:
interpreted Dr. Briggs' psychological evaluation and whether or not that interpretation was unreasonable.

[00:31:42] Speaker 00:
And I would urge this court to adopt Judge McEwen's view in the last panel decision in her dissent that this is more properly a D1 inquiry, and this isn't necessarily something that the court should look at under D2.

[00:31:57] Speaker 00:
And I will just say on the D2 point, I don't think this court can fault the state post-conviction court for

[00:32:05] Speaker 00:
Relying on dr. Briggs's evaluation that mr. Dietrich doesn't have any significant neurological Impairment in fact that he is in the normal range for his neurological functioning well was Some years after the crime of course absolutely and dr. Briggs's report talks about that that this is a recovered picture but as I look at the Arizona

[00:32:32] Speaker 00:
Recounting of that it's not clear to me that they were taking that in consideration First you know I'll echo my prior point that I don't think we can require state courts to list every single piece of evidence that we're relying on and I think any fair reading of dr. Briggs's report is that mr. Dietrich is in the normal range for his neurological functioning even if that's a recovered picture and

[00:32:59] Speaker 00:
But again, through the lens of D2, I don't think this court can say, I would have decided this differently in the first instance.

[00:33:06] Speaker 00:
I think this court has to say, was that unreasonable?

[00:33:09] Speaker 00:
Was it unreasonable for the state post-conviction court to rely on Dr. Briggs's overall conclusion that Mr. Dietrich's neurological functioning was within the normal range?

[00:33:20] Speaker 00:
And that unreasonable question is interesting, because I think what it really asks is,

[00:33:25] Speaker 00:
could any reasonable jurists have come to this conclusion and you know I hate to shift to the subjective but we've had several jurists agree with that conclusion.

[00:33:35] Speaker 00:
The state post conviction court I don't think there's any.

[00:33:39] Speaker 00:
Positive evidence in their decision that they ignored this recovered picture idea from dr. Briggs's report and One of the earlier questions asked well was dr. Briggs asked to look at what mr. Dietrich's functioning was in 1989 and if he wasn't then I think that

[00:33:59] Speaker 00:
Failure is imputed to post-conviction counsel.

[00:34:03] Speaker 00:
I think Mr. Dietrich bears the responsibility for any failure to direct Dr. Briggs' work towards this question of what his functioning was at the time of the crime.

[00:34:13] Speaker 00:
Dr. Briggs gave an evaluation based on whatever his mandate was from counsel.

[00:34:17] Speaker 00:
That was put in front of the state PCR court, and the state PCR court relied on Dr. Briggs' ultimate conclusion that Mr. Dietrich's neurological functioning was within the normal range.

[00:34:28] Speaker 00:
It's not unreasonable for the state post-conviction court to have looked at that evidence, to look at the additional sort of lay testimony through the declarations that are talking about a lot of the same things.

[00:34:41] Speaker 00:
Mr. Dietrich's admittedly bad childhood.

[00:34:43] Speaker 00:
He was a child of divorce.

[00:34:45] Speaker 00:
He endured suffering at the hands of his stepmother.

[00:34:48] Speaker 00:
He was introduced to drugs and alcohol as early as age nine.

[00:34:52] Speaker 00:
But that's information that the sentencer had.

[00:34:54] Speaker 00:
The sentencer had

[00:34:56] Speaker 00:
so much of this information from the two 1985 reports, from Dr. Boyer's 1990 report, from the three letters from Dietrich's sister, Diana Jo Stevens.

[00:35:07] Speaker 00:
And I understand this might be more effective if it's given live.

[00:35:14] Speaker 00:
But the reality is that the sentencing judge had the information.

[00:35:17] Speaker 00:
And if you just focus on prejudice, what was admitted in that initial collateral proceeding in state court wouldn't be enough.

[00:35:25] Speaker 00:
to say that there's a reasonable probability of a different outcome if that evidence had been presented to the sentencer.

[00:35:33] Speaker 00:
I will make one note there.

[00:35:35] Speaker 00:
This is kind of a strange area and a strange time in Arizona because we are pre-ring here and we have the judge making the determination of sentence along with Edmund Tyson and aggravation and that same judge here sitting in post-conviction.

[00:35:52] Speaker 00:
And the judge makes a point that, and there's some language in its decision, that I wouldn't have changed my sentence in this case.

[00:35:59] Speaker 00:
And that is admittedly subjective.

[00:36:02] Speaker 00:
But the Supreme Court and Shiro V. Landrigan recognized why trial judges are in a particularly good position to evaluate ineffective assistance counsel claims when they're in post-conviction.

[00:36:15] Speaker 00:
Not necessarily because they can say, based on their own impressions, no, I wouldn't have changed my mind if this evidence came in.

[00:36:22] Speaker 00:
But they have an intimate familiarity with the case that allows them to really objectively evaluate that evidence and say whether or not it would have changed the outcome of the trial that they presided over.

[00:36:35] Speaker 00:
To one of the questions asking whether or not the post-conviction court

[00:36:47] Speaker 00:
Had the significance of the birth defect and and this is that cleft palate evidence and whether or not you know there was any objective evidence of sort of a Neurological impairment before the post-conviction court my friend can really only point to evidence that was admitted

[00:37:07] Speaker 00:
through the evidentiary hearing in district court.

[00:37:10] Speaker 00:
And, you know, I don't want to fault people for not being prescient in understanding or seeing where the Supreme Court is going to go.

[00:37:18] Speaker 00:
But that evidentiary hearing in district court was granted before the Supreme Court decided Penholster.

[00:37:25] Speaker 00:
That wouldn't happen post Penholster.

[00:37:27] Speaker 00:
Penholster makes it clear

[00:37:28] Speaker 00:
that that subsection D determination has to be made before you can even move on to the E2 question.

[00:37:36] Speaker 00:
On this record, that was before the state post-conviction court, Dietrich can't meet his burden to show either subsection for 2254D.

[00:37:46] Speaker 00:
And that's gonna eliminate the opportunity for the federal court to use any of this new evidence.

[00:37:51] Speaker 00:
But even if you all find that Mr. Dietrich has met his burden and shows that this court doesn't have to give deference to the state post-conviction court, he still has to meet the requirements of E2.

[00:38:04] Speaker 00:
It's not suddenly a free-for-all on de novo review.

[00:38:07] Speaker 00:
E2 still limits whether new evidence can be admitted.

[00:38:10] Speaker 00:
And I know it's a tough exercise, because all of this new evidence that wasn't before the state post-conviction court is in this record.

[00:38:18] Speaker 00:
But I think the Supreme Court's been clear that you have, Mr. Dietrich has to meet those requirements before that new evidence can be considered.

[00:38:26] Speaker 08:
And what precisely is the E2 requirement?

[00:38:30] Speaker 00:
So the E2 requirement, it speaks to fault and so it's either an exception from E2 whether or not the fault is attributable to the petitioner.

[00:38:39] Speaker 00:
It can't be post-conviction counsel's fault, things like this, something external to the petitioner.

[00:38:44] Speaker 00:
And then whether or not there's a new rule of constitutional law that's made retroactive and forgive me for the other requirement, new evidence.

[00:38:52] Speaker 08:
Assume for a moment that we can look at the evidence that was presented in the district court.

[00:38:57] Speaker 08:
Sure.

[00:38:58] Speaker 08:
What do we do with it?

[00:39:00] Speaker 00:
I think you go to the Supreme Court's most recent Strickland decision in Thornell v. Jones, and you look at whether or not, in considering all of the evidence, it would have changed the outcome.

[00:39:14] Speaker 00:
And this is a case much more like Jones.

[00:39:16] Speaker 08:
It would have changed the outcome with what degree of probability?

[00:39:20] Speaker 00:
A reasonable probability of a different outcome.

[00:39:22] Speaker 00:
And so I think this case is a lot more like Jones and a lot less like those cases my friend cites, Wiggins, Rompea, Porter.

[00:39:30] Speaker 00:
Because this is a case where there was significant mitigation put before the sentencing judge.

[00:39:35] Speaker 00:
The judge found five mitigating circumstances, and there's no indication in the sentencing judge's special verdict or in the way he pronounced sentence that he didn't give those some effect.

[00:39:45] Speaker 00:
He just gave them the weight they were entitled to.

[00:39:47] Speaker 00:
So this is not a 0 to 100 case.

[00:39:50] Speaker 00:
This is more like a 75 to 100 case.

[00:39:54] Speaker 00:
There is some extra

[00:39:56] Speaker 00:
But it's largely cumulative.

[00:39:58] Speaker 00:
The family history evidence is largely cumulative, again, because there were the three reports the sentencing judge had, along with the benefit of Diana Jo Stevens' letters to the court.

[00:40:07] Speaker 00:
There was evidence in those three reports, and if I can kind of step to the side and make a collateral point, I want to focus on Dr. Boyer's report, because I think one of her findings is important to whether or not it was a strategic choice for trial counsel not to pursue

[00:40:25] Speaker 00:
other expert assistance.

[00:40:26] Speaker 00:
Dr. Boyer says in that report that based on my personality testing, I think Mr. Dietrich has anti-social personality traits.

[00:40:33] Speaker 00:
And I think this is important because this is a document that counsel knows the trial court will have access to.

[00:40:41] Speaker 00:
It's in the pre-sentence report.

[00:40:42] Speaker 00:
You can't keep this away from the court.

[00:40:44] Speaker 00:
And so counsel has a decision to make.

[00:40:46] Speaker 00:
Do I pursue other expert opinions and open my client up to a potentially damaging expert witness from the state?

[00:40:55] Speaker 00:
Or do I take what I have in this, along with the statements from Diana Jo Stevens on Mr. Dietrich's bad childhood, and put that before the court to give Mr. Dietrich a more neutral opportunity and not an opportunity for the state to secure a damaging expert witness in rebuttal and to put on perhaps even more damaging evidence that would have to be considered by the sentencer?

[00:41:18] Speaker 00:
I think that's a reasonable strategic choice.

[00:41:20] Speaker 00:
And we see elements of that even in Dr. Briggs's report.

[00:41:24] Speaker 00:
Disagree with dr. Boyer's conclusions concerning antisocial personality traits I think dr. Briggs actually agrees with that and so what we have here is a client where there are perhaps indications in the record That there are some potential neuropsychological avenues that should be explored But there's even more tantalizing indications that there's damaging evidence that will really harm the client before the sentencing judge and

[00:41:51] Speaker 00:
Instead of exploring that and presenting it to the court.

[00:41:54] Speaker 00:
It's better to rely on what we have Those three reports along with Diana Joe Stevens statements concerning mr.. Dietrich's childhood Why would you describe the antisocial personality disorder as damaging rather than mitigating I think it's widely accepted that at least in 1990

[00:42:16] Speaker 00:
And through the 90s, that was evidence that everyone tried to avoid having come in in a death penalty case in Arizona.

[00:42:25] Speaker 00:
Sentencing judges took that type of evidence and basically said, well, a person with antisocial personality disorder doesn't care about the feelings of others.

[00:42:34] Speaker 00:
They only really care about getting what they want to get.

[00:42:37] Speaker 00:
They have a complete lack of disregard for the feelings of others.

[00:42:41] Speaker 00:
And so that's exactly the type of evidence that would prevent a sentencing judge from finding the types of mitigating circumstances that the sentencing judge found here.

[00:42:50] Speaker 00:
Because if there's evidence of strong evidence that the state is pursuing and presenting to the sentencing judge of antisocial personality disorder, the judge is going to say, well, he said he had a bad childhood, but then he hurt all of these other people and hurt these families and all these things.

[00:43:08] Speaker 00:
I don't know if I'm going to weigh that very heavily.

[00:43:11] Speaker 00:
To some of the points about impulsivity you know and and and I'll get to that in a moment because I think I might have a more Satisfactory answer on like how long the timeline is and how that relates to the state record?

[00:43:22] Speaker 00:
But this is all to say at the time it was standard practice for Defense practitioners to try to avoid having an adverse antisocial personality disorder Diagnosis come in from a state's rebuttal expert witness the thread on that was that the idea that

[00:43:40] Speaker 00:
That type of person presenting that where it wasn't going to be treatable and wasn't going to be safe even in a prison environment as to others right and that's the double-edged sword and and I think I wanted to point that out too in terms of what would this impulsivity evidence have done if presented to rebut the aggravation evidence And what I think you know I think this court has to consider is that double-edged sword could that evidence actually have hurt Mr.. Dietrich because if he's putting in evidence of impulsivity and he's putting in evidence that

[00:44:10] Speaker 00:
You know argues that he couldn't control his conduct over this lengthy period of time then how can he be subject to?

[00:44:17] Speaker 00:
Rehabilitation can he ever be in the community can he be safely housed and that's certainly something that the sentencer would have had to evaluate and Deciding whether or not to sentence Mr.. We're doing now a lot of speculating about why that choice may or may not have been made I appreciate yes unless you've got something in the record we missed about this being an affirmative choice Is that is that fair or did we miss something?

[00:44:39] Speaker 00:
What we don't have in the state court record before the PCR court is an interview with trial counsel.

[00:44:46] Speaker 00:
The interview with Mr. Higgins was introduced in the district court.

[00:44:50] Speaker 00:
So we don't have objective evidence of Mr. Higgins' subjective choice.

[00:44:53] Speaker 03:
So when you talked about the tantalizing indications in the report and why another expert may not have been procured, I think, but I just want to be clear, clear that I'm understanding you.

[00:45:03] Speaker 00:
Sure.

[00:45:04] Speaker 03:
That is speculative, and we don't know.

[00:45:06] Speaker 03:
Is that right?

[00:45:07] Speaker 00:
We don't know but I think it's objectively reasonable when you see an indication like that the trial council would not pursue further expert testimony Because your point is this could have been strategic for pronged on purposes right okay?

[00:45:20] Speaker 03:
Got it would that's guess the timeline to I'm sorry no.

[00:45:24] Speaker 05:
Yeah, no absolutely

[00:45:27] Speaker 00:
So what we know, the statement, I will kill you, comes from Gwen Suter.

[00:45:31] Speaker 00:
She was the one who didn't see Mr. Dietrich or Mr. Charlton.

[00:45:35] Speaker 00:
She was in the other room.

[00:45:36] Speaker 00:
She heard a voice saying to her mother, I will kill you.

[00:45:39] Speaker 00:
She identified that voice at trial as being Mr. Dietrich's.

[00:45:43] Speaker 00:
Tammy Winsett testifies at trial that Mr. Charlton was telling her and basically boasting about how he had killed his ex-wife's lover.

[00:45:50] Speaker 00:
And I don't know what to make of that.

[00:45:53] Speaker 00:
But it's not the same as the I will kill you statement.

[00:45:55] Speaker 00:
What we know from the trial record is that both Mr. Dietrich and Mr. Charlton were upset, apparently, at the quality of the drugs that the victim, Elizabeth Souter, helped them procure.

[00:46:07] Speaker 00:
And we also know that Mr. Dietrich starts making these statements about how he's going to get what he's owed.

[00:46:15] Speaker 00:
And this is the evidence relating to the knife being seen held at the victim's throat,

[00:46:20] Speaker 00:
I believe that comes from Tammy Winsett's testimony.

[00:46:23] Speaker 00:
So we see a separation of the I will kill you statement from whatever

[00:46:31] Speaker 00:
Mr. Charlton told Tammy Winsett in the living room.

[00:46:35] Speaker 00:
Here, Mr. Charlton is saying, oh yeah, don't mess with me.

[00:46:39] Speaker 00:
I'm a bad guy.

[00:46:40] Speaker 00:
He's bragging, whatever.

[00:46:41] Speaker 00:
But Mr. Dietrich is saying, I will kill you in the course of those events where he's trying to get what he's owed or what he feels he's owed out of the victim.

[00:46:50] Speaker 00:
So he either feels like he wants his money, he wants good drugs, or he wants something else, which in his case was sex.

[00:46:56] Speaker 00:
And so that statement

[00:46:59] Speaker 00:
Understood in that context isn't really attributable to Alan Charlton.

[00:47:03] Speaker 00:
That's that's something coming from mr. Dietrich, and there's no evidence to show that Gwen suitor's testimony to that effect that it was mr. Dietrich saying this isn't true So we have that statement in the house and again that goes towards premeditation we have Tammy wins it who left the house and as she's coming back she sees the three of them getting into Charlton's car and

[00:47:27] Speaker 00:
And I think you had asked, Your Honor, at one point, if there was a knife outside.

[00:47:31] Speaker 00:
I read through the trial record.

[00:47:33] Speaker 00:
I don't think there was testimony that there was a visible knife outside at that time, that Ms.

[00:47:38] Speaker 00:
Souter was being sort of harangued into the car at knife point.

[00:47:43] Speaker 00:
It was dark.

[00:47:44] Speaker 00:
It was only moonlit.

[00:47:45] Speaker 00:
There was no streetlights.

[00:47:47] Speaker 00:
But we do know from that testimony from Tammy Winsett that she was forced into the car.

[00:47:51] Speaker 03:
What did we get from the after-the-fact statements, again, way after the fact?

[00:47:54] Speaker 03:
Carbonell and Shell talk about

[00:47:57] Speaker 03:
It's secondhand accounts of whether she was or was not led at knife point Well shell wasn't there and neither was Carbonell.

[00:48:07] Speaker 03:
I'm not suggesting that we're there in this eyewitness testimony.

[00:48:09] Speaker 03:
It's after the fact and secondhand

[00:48:12] Speaker 00:
I didn't see the record from Tammy wins it so our firsthand witness she didn't testify that she could see a knife leading the Victim out to the car.

[00:48:21] Speaker 03:
I wasn't talking about the eyewitness testimony, but I'm Waylaying you go go right ahead.

[00:48:26] Speaker 00:
It doesn't matter that's okay, and I apologize for not maybe question about the length of time, okay?

[00:48:33] Speaker 00:
And so we have this transaction from the threats in the house.

[00:48:37] Speaker 00:
Tammy wins it leaving to go use a telephone to call 911.

[00:48:41] Speaker 00:
And I think that's that 1.32 AM thing.

[00:48:43] Speaker 00:
So we don't know exactly when she left the house, when she returned.

[00:48:47] Speaker 00:
We know when she made the phone call.

[00:48:49] Speaker 00:
But then she comes back.

[00:48:50] Speaker 00:
She sees the two men forcing Ms.

[00:48:52] Speaker 00:
Souter into the car.

[00:48:54] Speaker 00:
And then they leave.

[00:48:56] Speaker 00:
And so to your question, Your Honor, about, well, this seems like a pretty long period of time.

[00:49:01] Speaker 00:
How is this impulsive?

[00:49:04] Speaker 00:
Don't have a lot of information about the exact amount of time But we do have information about the different things that are happening in that transaction we have information about how that whole interaction went sour when Mr.. Dietrich became unhappy with the quality of the drugs to be clear with respect to the knife that was held at her throat at the house We know that's not the murder weapon

[00:49:26] Speaker 00:
Yeah, I believe that knife was still found at the house.

[00:49:29] Speaker 03:
I think that's clear.

[00:49:30] Speaker 03:
I think that's exactly right.

[00:49:32] Speaker 03:
So then there's this sequence that takes however long it takes to get into the car, and then there's a time period in the car.

[00:49:38] Speaker 03:
And we don't know how long that is either.

[00:49:39] Speaker 00:
I think our best evidence is from Alan Charlton's testimony.

[00:49:43] Speaker 00:
And, you know, take that for what you will now, but we know that the jury took that for what it was then and found Mr. Dietrich guilty.

[00:49:50] Speaker 03:
Well, so, but what do we get?

[00:49:52] Speaker 03:
I keep trying to get back to Judge Craver's question.

[00:49:54] Speaker 03:
What do we get?

[00:49:55] Speaker 03:
What's your best shot about how long this took in terms of whether it was impulsive or not?

[00:49:59] Speaker 00:
I think it took more than five minutes.

[00:50:02] Speaker 03:
I mean, what you have is... Being left in the house and being killed.

[00:50:07] Speaker 00:
That's harder.

[00:50:07] Speaker 03:
I don't know that yeah, I mean that's that's the big question mark I think that is the timeline we're talking about because the question is whether this is an impulsive act and My my statement was right a lot of time to stop and that's what I'm trying to push against how long From the discovery of the drugs being bad apparently until she was murdered in the car And I I don't mean to belabor the point I'm not sure that we can I've looked at the record awfully hard.

[00:50:31] Speaker 03:
I can't get an answer to that question, but

[00:50:33] Speaker 00:
Yeah, and I think the best information we have is that there was a clear escalation with a lot of opportunity to stop that escalation and that Mr. Dietrich didn't take that opportunity even though he had it.

[00:50:46] Speaker 06:
Can I ask you about Mr. Carbonell?

[00:50:50] Speaker 06:
He testified at trial that Mr. Dietrich confessed to killing Sauder, but in his 1990 interview with a defense investigator, he said only that he surmised

[00:51:04] Speaker 06:
That Dietrich was the one who killed her I guess I just wanted to find out well Why wasn't the trial counsel's failure to cross-examine mr.. Carbonell on that point?

[00:51:17] Speaker 00:
an important inconsistency or Possibly prejudicial so is this in claim a one of the Martinez remanded claims you're asking about your honor this

[00:51:30] Speaker 03:
I think it is.

[00:51:31] Speaker 03:
I think so.

[00:51:32] Speaker 00:
Because if this is going to guilt, this wouldn't be in claim B, I, C, and mitigation, would it?

[00:51:36] Speaker 03:
The question in Dietrich 5, though, boiled down to if there was, you know the line, if there was additional evidence that cast the blame slightly differently, the balance, if less evidence that Dietrich was the actual killer and more evidence that Charlton was, would that have made a difference at sentencing?

[00:51:55] Speaker 03:
It was always about sentencing.

[00:51:57] Speaker 00:
Right.

[00:51:59] Speaker 00:
Right so let me rephrase the question which is really annoying and I apologize for that and you tell me if I'm wrong but as to Carbonell and whether or not he would have been impeached with this other statement that well I was only guessing at what you know Dietrich was telling me based off of these other factors.

[00:52:19] Speaker 00:
that Charlton was driving.

[00:52:20] Speaker 00:
He said he killed a girl.

[00:52:22] Speaker 00:
First, I think those are fair inferences, and I don't think getting on the record that the witness that Carbonell made inferences from that.

[00:52:31] Speaker 00:
would have really changed the way the sentencing judge looked at mitigation.

[00:52:36] Speaker 00:
I think there's other evidence in the record that still upholds the judge's finding that Dietrich was the actual killer.

[00:52:45] Speaker 00:
This includes the blood evidence about Dietrich having more blood on his overalls, and I appreciate there's

[00:52:54] Speaker 03:
New stuff that was introduced in the federal proceedings, but we kind of have to shut our eyes to that I think maybe maybe right yeah, it's always a maybe in this So that's why this matters at least I'm one of 11.

[00:53:16] Speaker 03:
That's why this matters to me about was was there additional

[00:53:19] Speaker 03:
Would there have been lingering doubt?

[00:53:21] Speaker 03:
Would that have mattered at sentencing?

[00:53:23] Speaker 03:
Hence, Judge McGee, Chief Judge McGee's question is important, I think.

[00:53:26] Speaker 03:
This strikes me as one of his strongest claims.

[00:53:28] Speaker 03:
The testimony, secondhand, of a confession is powerful, right?

[00:53:36] Speaker 03:
So, what's your best response to that?

[00:53:38] Speaker 00:
First, I'm going to reiterate the argument that didn't land with the plurality, but that's that just because the jury or at least some jurors didn't find that premeditated murder was proof beyond a reasonable doubt.

[00:53:51] Speaker 00:
doesn't mean that they didn't believe that Dietrich was the actual killer.

[00:53:55] Speaker 00:
And I appreciate that the plurality had a different view of that, but I think that's the logical conclusion, that we can't surmise from the lack of a verdict on premeditated murder that those jurors did not believe that Mr. Dietrich was the actual killer.

[00:54:11] Speaker 00:
And then as far as the evidence goes linking Dietrich to the murder, we have all of his conduct against the victim leading up to finding her body in the desert.

[00:54:22] Speaker 00:
We have the eyewitness testimony of him saying, I will kill you to Elizabeth Souter.

[00:54:27] Speaker 00:
We have testimony that he was the one mad with her about the drugs and that he was going to get what he wanted from her.

[00:54:36] Speaker 08:
And I say eyewitness testimony, I will kill you.

[00:54:39] Speaker 00:
Ear witness testimony.

[00:54:41] Speaker 08:
Ear witness.

[00:54:42] Speaker 08:
That testimony itself is questioned as to the identity of the speaker.

[00:54:47] Speaker 00:
I appreciate that, Judge, but at least when we look at E1, nothing has been presented to refute

[00:54:51] Speaker 00:
Correctness of the state record on that point But we have testimony about Dietrich's interactions with the victim leading up to her body being found in the desert And I think that's enough to support the trial court judges finding that Dietrich was the actual killer even when considering Carbonell's equivocation after the fact I

[00:55:19] Speaker 00:
If I can pivot unless there's any other questions on claim B, or I appreciate the question on claim A, I don't think you all want to hear me talk a lot about Ramirez and E2, but that's our position and what the Supreme Court has done in this area.

[00:55:34] Speaker 00:
But on the causal nexus claim, I'll just make a quick

[00:55:38] Speaker 00:
that this isn't the type of decision from the Arizona Supreme Court that this court signaled in McKinney demonstrates the type of causal nexus claim that the court identified.

[00:55:52] Speaker 00:
We don't have a positive statement that the Arizona Supreme Court is disregarding a certain type of mitigating evidence because it has not been connected

[00:56:01] Speaker 00:
to the facts and circumstances of the crime.

[00:56:04] Speaker 00:
I'll admit there is a citation to Stokely in the Arizona Supreme Court's opinion on its independent review.

[00:56:10] Speaker 00:
But if you follow that through and go to the proposition Stokely is being cited for, it's not about the impact or availability of family history evidence on mitigation.

[00:56:21] Speaker 00:
I believe the citation to Stokely talks about

[00:56:25] Speaker 00:
disparate sentences and when a disparity can even be considered as a mitigating circumstance And just that point on Stokely.

[00:56:34] Speaker 00:
It's basically saying only unexplained Disparities and sentences can be considered mitigation.

[00:56:40] Speaker 00:
Those are the only ones that can be relevant So the citation to Stokely wasn't for that improper purpose that this court identified in McKinney and there being no positive indication that the Arizona Supreme Court is

[00:56:53] Speaker 00:
applied an unconstitutional causal nexus claim, the time period alone isn't enough to entitle Mr. Dietrich to relief on that claim.

[00:57:03] Speaker 00:
If there are no other questions, I would respectfully ask that this court affirm the district court and deny the writ of habeas corpus.

[00:57:12] Speaker 00:
Thank you.

[00:57:29] Speaker 02:
Your Honors, I'll try to get through the points I'd like to address that Mr. Lewis raised.

[00:57:35] Speaker 02:
Mr. Lewis pointed out that the state court's decision can't be unreasonable because Mr. Dietrich was in the normal range at the time of Dr. Briggs testing.

[00:57:44] Speaker 02:
I just wanted to emphasize that he was at 25 in general impairment, where 26 is the cutoff for normal.

[00:57:52] Speaker 02:
And so that, in combination with Dr. Briggs' other language about this being a recovered picture and about there being impairment,

[00:57:59] Speaker 02:
I think was really important and disregarded by the state court.

[00:58:04] Speaker 02:
Yes, sir.

[00:58:05] Speaker 04:
How do you square that statement you just made now with Dr. Briggs' report on page three, which says, with regard to tests specific to the neuropsychological functions of each cerebral hemisphere, the patient does not demonstrate a pattern of cognitive dysfunction.

[00:58:28] Speaker 04:
Where is there any evidence that there was cognitive dysfunction in 2000, pardon me, in 1989 or 1990 or 1991 in view of Dr. Boyer's finding that there was no cognitive dysfunction in 1991?

[00:58:47] Speaker 02:
Your Honor, I believe I gave you the best citations for that, which are at 5ER 1178.

[00:58:55] Speaker 02:
where he finds mild neuropsychological deficits.

[00:58:59] Speaker 02:
He finds that there's greater overall impairment and function in light of the trauma and the alcohol.

[00:59:05] Speaker 02:
I don't know that, and when he specifically discussed the Halstead Rytan results, that's the evidence of impairment, Your Honor.

[00:59:14] Speaker 02:
I would like to also push back a little bit on Mr. Lewis's characterization of the evidence in front of the sentencing judges.

[00:59:25] Speaker 02:
as a weighty.

[00:59:27] Speaker 02:
I mean these were two, these were a couple of letters that were written haphazardly and desperately by Mr. Dietrich's sister with no guidance from counsel whatsoever.

[00:59:37] Speaker 02:
These were psychological reports that were based on self-report by Mr. Dietrich and personality testing.

[00:59:44] Speaker 02:
There was no collateral data, there were not meaningful interviews, there was no live witness testimony as Mr. Lewis admitted.

[00:59:51] Speaker 02:
And I think that Mr. Lewis is correct that

[00:59:54] Speaker 02:
This court has to look at cases like Jones, Shad, and Kehr in considering whether we can satisfy D1 and D2 after Penholster.

[01:00:04] Speaker 02:
But when you look at those cases, you'll see Mr. Dietrich's case is quite different.

[01:00:08] Speaker 02:
There were 11 mitigators and 15 lied witnesses at Mr. Shad's sentencing.

[01:00:13] Speaker 02:
There were three aggravators.

[01:00:15] Speaker 02:
In PCR, there was investigative funding and 27 extensions of time for

[01:00:19] Speaker 02:
counsel to develop evidence.

[01:00:21] Speaker 02:
In Jones, there were live witnesses and a mental health expert at sentencing.

[01:00:25] Speaker 02:
There were three victims, four aggravators.

[01:00:28] Speaker 02:
There was an investigative funding and a hearing in post-conviction.

[01:00:32] Speaker 02:
And there was no causal connection made in the evidence that Mr. Jones did present in post-conviction.

[01:00:38] Speaker 02:
In CAIR, the client interfered with the mitigation development.

[01:00:43] Speaker 02:
There was heavy aggravation, but yet there was a nine-day hearing in post-conviction plus investigative funding.

[01:00:49] Speaker 02:
And the mitigation that resulted from that was questionable whether it was even proved.

[01:00:54] Speaker 02:
So when you look at the leading pinholster cases against Mr. Dietrich's case, we feel that we're quite different and relief is still warranted under 2250 for D1 and D2.

[01:01:06] Speaker 02:
Your Honor, just in closing, I know I'm out of time.

[01:01:09] Speaker 02:
I would just like to say that Mr. Dietrich, when you look at this case as a whole, was not afforded individualized consideration, either because of his trial counsels, sentencing counsels, and effectiveness, and the causal connection test that was alive and well in Arizona at the time.

[01:01:26] Speaker 02:
And this court should grant the writ on one of those claims.

[01:01:30] Speaker 02:
Thank you so much.

[01:01:32] Speaker 06:
Thank you.

[01:01:33] Speaker 06:
Ms.

[01:01:33] Speaker 06:
Armstrong, Mr. Lewis,

[01:01:35] Speaker 06:
Appreciate your oral argument presentations here today.

[01:01:38] Speaker 06:
The case of David Scott Dietrich versus Ryan Thornell is now submitted.

[01:01:43] Speaker 06:
We are adjourned.

[01:01:44] Speaker 06:
Thank you.