[00:00:03] Speaker 00:
Good afternoon, Your Honors.

[00:00:05] Speaker 00:
Preliminarily, I have a slight cold.

[00:00:08] Speaker 00:
If there's no objection, though, I'd like to remove my mask for argument.

[00:00:11] Speaker 03:
That's fine with me.

[00:00:13] Speaker 03:
I would ask you if you could speak closer to the microphone if you can do that, please.

[00:00:18] Speaker 03:
Certainly.

[00:00:18] Speaker 03:
Is that better?

[00:00:19] Speaker 03:
A little bit.

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

[00:00:21] Speaker 00:
I'll speak up.

[00:00:22] Speaker 00:
My voice is a little rough, but I'll do what I can.

[00:00:24] Speaker 03:
Do your best, and we understand you're a little bit under the weather.

[00:00:28] Speaker 03:
Thank you.

[00:00:30] Speaker 00:
Good afternoon, Your Honors.

[00:00:31] Speaker 00:
Marta Van Landingham appearing on behalf of petitioner appellant Sean Burney.

[00:00:35] Speaker 00:
I'm accompanied today by my co-counsel, Mihal Ansik, and I'd like to reserve 10 minutes, and I'll keep track of my time.

[00:00:45] Speaker 00:
Before discussing the legal claims before this court, I think it would be helpful to review Burney's circumstances at the time of the crime and the events of the night that Joseph Condrath was tragically killed.

[00:00:59] Speaker 00:
These facts are uncontroverted in the record and are all relevant in their own ways to the different claims.

[00:01:06] Speaker 00:
Now with regard to Bernie's characteristics, his situation, and his vulnerability, he was 18 years old at the time of the crime.

[00:01:15] Speaker 00:
Psychologically and emotionally though, he had the maturity of a 15-year-old.

[00:01:21] Speaker 00:
And I think that fact appears.

[00:01:23] Speaker 00:
It's borne out throughout the course of the events.

[00:01:26] Speaker 00:
He was not in a gang and basically had a clean record.

[00:01:32] Speaker 00:
His mother had, just a couple of weeks before the crime, rather brutally kicked him out of the house in favor of an abusive new husband.

[00:01:41] Speaker 00:
So Bernie was on the streets.

[00:01:43] Speaker 00:
Originally, he turned to friends.

[00:01:45] Speaker 00:
But as he was staying with one of his best friends, there was a tragic accident in which a child died.

[00:01:51] Speaker 00:
And with the grief in that family, Bernie did not feel he could stay there.

[00:01:56] Speaker 00:
So he was almost homeless.

[00:01:59] Speaker 00:
But he ended up crashing on the floor of a party house, more or less, belonging to two older acquaintances, both of whom were gang members.

[00:02:12] Speaker 00:
On the night of the crime, the two gang members, Alan Burnett and Scott Rembert, they were both drunk.

[00:02:20] Speaker 00:
They gloved up to steal a car stereo belonging to a neighbor of theirs with whom Burnett was angry for issues involving gang disputes.

[00:02:34] Speaker 00:
So they gloved up, they left the house, and Rembert brought his two-shot derringer pistol.

[00:02:42] Speaker 00:
when they couldn't find the car they were looking for and they were frustrated, they were figuring out what to do, how they could get out all their aggression and that's a little bit not in the record but it's kind of shown by what happened next.

[00:02:56] Speaker 00:
They saw Joseph Condrath, a 23-year-old college student sitting in his car preparing to go to work and they decided to jack Condrath and steal his car.

[00:03:07] Speaker 00:
They forced Condrath into the trunk.

[00:03:09] Speaker 03:
after your client knocked on the window and asked him what time it was.

[00:03:13] Speaker 03:
Correct.

[00:03:14] Speaker 00:
Yes.

[00:03:16] Speaker 00:
From then on though, Bernie, until the very end, did nothing but drive the car.

[00:03:22] Speaker 00:
This was likely because Burnett didn't drive a manual transmission.

[00:03:28] Speaker 00:
So they, Burnett and Rembert, directed Bernie to the house of Jeff Howard, one of their co-gang members, who testified at trial that Burnett and Rembert came inside

[00:03:38] Speaker 00:
to borrow an untraceable shotgun.

[00:03:41] Speaker 00:
In addition to the shotgun, Howard gave Burnett several shotgun shells and he gave Rembert a handful of bullets for his derringer.

[00:03:50] Speaker 00:
Burnett told him they had someone in the trunk of the car.

[00:03:54] Speaker 00:
Then Burnett and Rembert went on the hunt for Watergate Crips, rival gang members who had recently beaten Burnett.

[00:04:02] Speaker 00:
Bernie drove them around the Crips neighborhood in Anaheim or Santa Ana.

[00:04:07] Speaker 00:
with Rembert firing his derringer and Burnett firing the shotgun.

[00:04:11] Speaker 00:
At some point during the night, they drove to the home where Burnett's former girlfriend, Cynthia Nelson, lived with her mother and a roommate.

[00:04:19] Speaker 00:
Burnett and Rembert both shot five or six times at the facade of the house.

[00:04:26] Speaker 00:
One bullet missed the roommate's head by inches.

[00:04:31] Speaker 00:
After that, they returned to Howard's where Burnett returned the shotgun.

[00:04:37] Speaker 00:
And then as Burnett and Rembert's shooting rampage drew to a close, they decided their neighbor, Condrath, could identify them and had to die.

[00:04:45] Speaker 00:
All of them at this point had to believe that Burnett and Rembert had killed others that night, whether shooting at Watergate Crips that they saw on the street or shooting up the facade of Cynthia Nelson's house.

[00:05:00] Speaker 00:
They couldn't have known because they were shooting through walls that all the bullets had missed, even though not by much.

[00:05:06] Speaker 00:
So they all had to believe that the only one at that point without blood on his hands was Bernie.

[00:05:13] Speaker 00:
And so on that dark street, Bernie opened the trunk part way and without looking fired.

[00:05:19] Speaker 03:
Well, that's what he said.

[00:05:21] Speaker 00:
That is what he said.

[00:05:22] Speaker 03:
He also told the officers.

[00:05:27] Speaker 03:
and I, meaning him, was like, you got to kill him, you got to kill him.

[00:05:32] Speaker 03:
So then what happened?

[00:05:34] Speaker 03:
I killed him.

[00:05:35] Speaker 03:
That was his testament to the officers, right?

[00:05:39] Speaker 00:
He did admit very remorsefully, very tearfully to having been the person who affected Conrad's death.

[00:05:47] Speaker 03:
But he also told the officers I was the person who said you got to kill him.

[00:05:53] Speaker 03:
That's what I'm reading on.

[00:05:55] Speaker 03:
978 of the excerpts a record.

[00:05:57] Speaker 00:
There is also quite a bit in the record though that shows that Burnett was the one forcing him to kill.

[00:06:03] Speaker 00:
I mean, Condroth was Burnett's neighbor, not Bernie's.

[00:06:06] Speaker 00:
He was only there temporarily.

[00:06:08] Speaker 00:
And I can find for you happily the other portions of that statement.

[00:06:14] Speaker 03:
I know he said different things.

[00:06:15] Speaker 03:
He initially, when he was questioned by the officers, initially denied any involvement at all.

[00:06:21] Speaker 00:
Yes.

[00:06:21] Speaker 00:
The point here, though, is that regardless of what he said, and he said, like you mentioned, an awful lot of different things.

[00:06:28] Speaker 00:
At some times, he was trying to distance himself from the events.

[00:06:31] Speaker 00:
Other times, he was taking full accountability.

[00:06:35] Speaker 00:
He went back and forth.

[00:06:36] Speaker 00:
But the events that I just highlighted are what I think are relevant to show who actually had control of the events that night, whose agenda was being affected, who was

[00:06:48] Speaker 00:
Behind and responsible and motivating of everything and the only act that Bernie took was firing once I mean the only act he took was opening the trunk looking at the guy Taking out his gun and putting one in the guy's head That the last part there is in dispute of the bullet ended up in his head it did it did and that brings me though to

[00:07:15] Speaker 00:
And the facts regarding how far the trunk was open, how dark it was, whether he was looking or not, those are all in dispute.

[00:07:24] Speaker 00:
But as I mentioned, he was a scared kid.

[00:07:27] Speaker 00:
He'd never done anything like this before.

[00:07:29] Speaker 00:
So that moves me to, though, how in light of these circumstances, Bernie ends up on death row as a judge to be one of the worst of the worst.

[00:07:44] Speaker 00:
This is where the claims come together.

[00:07:46] Speaker 00:
There were a number of constitutional errors in this trial, but the ones we have here on appeal all sort of tied together.

[00:07:53] Speaker 00:
The judicial bias claim focuses on the judge's comments that made the fair trial impossible.

[00:08:04] Speaker 00:
But the flip side of that, the other way that this judge exhibited his bias, his predetermination,

[00:08:10] Speaker 00:
of Bernie's guilt and death sentence also lies in the rulings he made and his decision of a trial that tried all three of these people jointly and involved the introduction and admission into evidence of all of their statements against each other without an opportunity for cross-examination.

[00:08:33] Speaker 00:
The court denied over half a dozen motions to sever

[00:08:39] Speaker 00:
before the end the trial actually began and during the trial as Things kept going very very wrongly with regard to the statements there were over a dozen objections and motions for mistrial during the actual trial I mean, I understand you're arguing that this is part of your showing of the judge was biased but the only three claims we've got here are the judicial misconduct and

[00:09:05] Speaker 03:
the Miranda claim and the harmlessness or lack thereof of the Bruton claim, right?

[00:09:12] Speaker 03:
Those are the only three things we're dealing with today.

[00:09:14] Speaker 03:
Bottom line, yes?

[00:09:16] Speaker 03:
Yes.

[00:09:16] Speaker 00:
I am basically tying the claims together in that judicial bias led to the Bruton error because in the circumstances of this case, it was impossible to not sever the trial, to try them jointly.

[00:09:34] Speaker 00:
as they did without violation of the confrontation clause, without violation of Bruton rule and Samia and so on.

[00:09:43] Speaker 03:
So on Bruton counsel, you agree that the California Supreme Court said the evidence here was overwhelming.

[00:09:53] Speaker 03:
Correct.

[00:09:53] Speaker 03:
And they applied the correct legal standard of harmless beyond a reasonable doubt as to the Bruton, they found Bruton error and applied harmless beyond a reasonable doubt.

[00:10:05] Speaker 00:
They did, but that finding was unreasonable.

[00:10:11] Speaker 03:
Why was it unreasonable, for example, why was the California Supreme Court's determination that the evidence against your client was overwhelming?

[00:10:22] Speaker 03:
Sometimes they said overwhelming, sometimes they said very strong.

[00:10:25] Speaker 03:
Why was that something no reasonable jurist could conclude that the evidence was overwhelming of guilt of your client?

[00:10:33] Speaker 00:
Your Honor, there were a number of issues in their harmlessness determination that they failed to take into account, and unreasonably did so.

[00:10:42] Speaker 00:
There was quite a bit of evidence that only came in against Bernie through the co-defendants' statements.

[00:10:48] Speaker 00:
And I want to point out that one of the major impacts of these statements against Bernie was not only at the guilt phase, but it all carried over.

[00:10:57] Speaker 00:
It all spilled over into the penalty phase as well.

[00:11:00] Speaker 00:
So the jurors heard,

[00:11:02] Speaker 00:
that Bernie was the one who was responsible for terrorizing Condrath, that he was the one who put a gun to Condrath's head and forced him into the trunk of the car, that he was the one insisting all along that they had to kill Condrath, and that he wanted to kill Condrath, not that he was made to by what was happening.

[00:11:24] Speaker 00:
So all of that only came in from the co-defendant statements against Bernie.

[00:11:28] Speaker 03:
Well, no.

[00:11:28] Speaker 03:
That respectfully canceled the part I just read from his statement.

[00:11:32] Speaker 03:
That's some of what he said to the detectives was he can identify us.

[00:11:39] Speaker 03:
I said we had to kill him, so I killed him.

[00:11:41] Speaker 03:
So, I mean, I'm not arguing with you that there wasn't some other evidence there, but it certainly wasn't the only evidence from the co-defendants because he himself said I was the one who decided to kill him because he could identify us.

[00:11:58] Speaker 00:
Yes.

[00:11:59] Speaker 00:
There are two elements there.

[00:12:00] Speaker 00:
First of all,

[00:12:01] Speaker 00:
That was one statement, while on the other hand, weighing in addition to that, you had both the other co-defendants and their counsel and the prosecutor all saying not only that he did it, but that he drove the events of that night, and he made them do it, and they argued against him, and he kept saying, no, we have to kill him.

[00:12:23] Speaker 00:
That is very different from, at the end, I went along with it.

[00:12:28] Speaker 00:
And the other part of it, too, is that

[00:12:35] Speaker 00:
that the whole picture painted would have been very different at penalty especially if not for the story that was piled on by all of the other parties involved here.

[00:12:52] Speaker 00:
And also that another part of the

[00:12:56] Speaker 00:
issue that the California Supreme Court did not take into account in its harmlessness determination was the defenses that Bernie had lost to him in light of the joint trial.

[00:13:13] Speaker 00:
Had he at guilt been able to use his own unredacted statement, he would have shown Burnett's being the prime controlling moving figure in all of this.

[00:13:23] Speaker 00:
His coercive role

[00:13:25] Speaker 00:
his instability, his implied threats.

[00:13:28] Speaker 03:
Council, I thought, and correct me if I'm wrong, I may be remembering this incorrectly, but I thought part of your argument was that part of the redaction substituted for names, the word others.

[00:13:44] Speaker 03:
Yes.

[00:13:44] Speaker 03:
And I thought part of your argument

[00:13:46] Speaker 03:
was that with regard to the co-defendants statements, everybody knew who others was, him.

[00:13:51] Speaker 03:
Yes.

[00:13:52] Speaker 03:
So wouldn't this reverse be true, that with regard to his statement, everybody would know who others was, the other two?

[00:14:00] Speaker 00:
Yes, but I think by that point, with all these statements coming in, it became garbled, it became muddy, it became chaotic.

[00:14:08] Speaker 00:
You had both the prosecutor and Rembert's counsel confusing Burnett and Bernie when they talked about people.

[00:14:17] Speaker 00:
Everything was, instead of being allowed to make a clean case as to what happened, it was two other defendants being allowed to say, no, everything was him.

[00:14:28] Speaker 00:
It was all him with his own voice being lost in the cacophony of that trial.

[00:14:34] Speaker 00:
And also, without

[00:14:39] Speaker 00:
The statements, his duress defense would have been quite a bit clearer.

[00:14:43] Speaker 00:
At guilt, he could have argued the coercion factors that I highlighted at the opening, that duress countered the requirement for deliberated and premeditated mens rea for the first degree murder, and also that the coercion could have been a defense

[00:15:06] Speaker 00:
for the felonies underlying the felony murder theory that the prosecution was preferring.

[00:15:12] Speaker 00:
Had Bernie been able to cleanly show that it was Burnett driving all the events and he had really no choice but to go along, he could potentially have gotten a second degree murder conviction.

[00:15:25] Speaker 03:
Or.

[00:15:26] Speaker 03:
That's what your, that's what his counsel at trial asked the jury to do, right?

[00:15:30] Speaker 00:
Correct.

[00:15:31] Speaker 00:
But all of this also spilled over quite dramatically into the penalty phase.

[00:15:35] Speaker 00:
At penalty,

[00:15:36] Speaker 00:
counsel asked for an instruction saying that there, the co-defendant statements could not come in against Bernie, and that was denied.

[00:15:48] Speaker 00:
Even though the judge had acknowledged that basically the whole Bruton redactions had been ineffective, he said they've all figured it out.

[00:15:58] Speaker 00:
Even under that, he still allowed them to come into evidence at the penalty phase.

[00:16:05] Speaker 00:
where the prosecutor read from them heavily in his closings when arguing why Bernie had to die.

[00:16:14] Speaker 01:
Could you spend some time talking about, you've talked about judicial bias and the denial of the motion to sever, could you talk about the judicial misconduct claim?

[00:16:27] Speaker 01:
In my mind, there's no argument here that many of the comments that the trial judge made were inappropriate, egregious,

[00:16:35] Speaker 01:
et cetera but your reliance on Wellens here seems somewhat misplaced because there I think the comments were much worse and we also don't have supervisory authority over the trial court so I'm not sure what we are to do even if we agree that a lot of the remarks were inappropriate.

[00:16:59] Speaker 00:
Yes, Your Honor.

[00:17:00] Speaker 00:
In Wellens, I think the record is actually not as strong as what we've got here.

[00:17:04] Speaker 00:
In Wellens, I think there were implications regarding the inappropriate gifts being given by the jury to the judge.

[00:17:11] Speaker 00:
I'm not completely clear on my memory of that case, but here we do have an actual record of all these statements made.

[00:17:20] Speaker 03:
Just to remind you, if you don't mind, I mean, what the Supreme Court said in Wellens is,

[00:17:27] Speaker 03:
There had been unreported ex-party contacts between the jury and the judge.

[00:17:32] Speaker 03:
Jurors and a bailiff had planned a reunion, and either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as genitalia and the bailiff chocolate shaped as other private parts.

[00:17:47] Speaker 00:
Right.

[00:17:47] Speaker 00:
And so that's why the Supreme Court stated very clearly the precepts that have been underlying

[00:17:55] Speaker 00:
pretty much all constitutional jurisprudence here, that everybody has a right to a fair trial before an unbiased jury and an unbiased judge.

[00:18:04] Speaker 00:
And they said from beginning to end, judicial proceedings conducted especially for the purpose of deciding whether a defendant shall be put to death

[00:18:13] Speaker 00:
must be conducted with dignity and respect.

[00:18:17] Speaker 00:
And that is the issue here.

[00:18:18] Speaker 00:
This trial was very much not conducted with dignity and respect.

[00:18:22] Speaker 00:
It was conducted as a open mic night with a goal of having fun and making people laugh and getting through this quickly, saving time and saving money.

[00:18:36] Speaker 00:
Because it's clear that the judge had predetermined

[00:18:41] Speaker 00:
both the conviction and the penalty, and didn't think they needed to waste any more time or be particularly sad about it.

[00:18:47] Speaker 00:
So he made misstatements of the law, which under Caldwell, violated Caldwell in that they minimized the jury's sense of responsibility and diluted the gravity of a capital jury's task, and therefore presented an intolerable danger of bias toward a death sentence.

[00:19:09] Speaker 00:
He, for example, informed them that they couldn't second guess the prosecutor as to why he chose to seek the death penalty on one defendant over the other two.

[00:19:20] Speaker 00:
And here I also want to highlight what it must have appeared like to the jury to be presented with three defendants.

[00:19:28] Speaker 00:
In theory, you're not going to know who's saying what about whom, but there is Sean Burney, who is the only one facing the death penalty.

[00:19:38] Speaker 00:
So that right there sets things off on a rather pre-prejudicial basis.

[00:19:43] Speaker 00:
And so then to have the jury instructed by the judge, who's in a position of preeminence over the whole proceeding, to say, you don't have to worry about why he's being charged with a death penalty.

[00:19:54] Speaker 00:
Take the prosecutor's word for it that he deserves it.

[00:19:58] Speaker 00:
Not in those words, but that's the implication.

[00:20:01] Speaker 00:
He also told them basically to ignore their own experiences in determining the outcome, which violates penry and its requirement that the jury impose a reasoned moral response based on their own understanding of mercy and such.

[00:20:21] Speaker 00:
In terms of minimizing the gravity, he compared execution to getting an ice cream at Baskin Robbins.

[00:20:32] Speaker 00:
And he urged them to have an enjoyable experience.

[00:20:38] Speaker 00:
And then, of course, finally, there's potentially the most toxic aspect, which is the racism and the overt dog whistles that happen in a courtroom in which you have a jury that has no black people on it, on which the one black prospective juror

[00:21:02] Speaker 00:
had to beg the court to let her go because she was so distraught over the racial injustice she was seeing around her.

[00:21:10] Speaker 00:
In that situation, you had a judge talking about lynching, talking about how non-white people all look alike, and referring to them as grown boys.

[00:21:24] Speaker 00:
All of that, the district court as well found to be worthy of a second look.

[00:21:31] Speaker 00:
And I argue here that it's worth you have much more, especially the racial comments, all of which came in during the guilt phase and the penalty phase and therefore are under de novo review.

[00:21:48] Speaker 00:
And I see that I'm at about eight minutes, so unless you have further questions.

[00:21:57] Speaker 03:
Thank you.

[00:21:57] Speaker 03:
Just for your planning, we'll give you your full 10 minutes for rebuttal.

[00:22:20] Speaker 02:
Good afternoon and may it please the court Vincent LaPietra on behalf of respondent My friend began with the Bruton issue, so I would like to respond to that The California Supreme Court clearly Reasonably applied Chapman in determining that admission of these statements did not violate Mr. Bernie's right to due process

[00:22:46] Speaker 02:
it correctly determined that the statements were cumulative to Mr. Burney's own statement and that the statements did not contribute to the verdict in any way.

[00:22:58] Speaker 03:
You can see that everybody, in a common sense way, everybody would know

[00:23:04] Speaker 03:
who others were.

[00:23:05] Speaker 02:
Yes, Your Honor.

[00:23:06] Speaker 03:
Okay, go ahead.

[00:23:06] Speaker 02:
Yes, Your Honor, and we agree with the court's question about whether that applied also to Mr. Bernies.

[00:23:14] Speaker 02:
Being able to see through the redaction applied to Mr. Bernies' statement, and it did.

[00:23:19] Speaker 02:
But what I wanted to note for the court was that

[00:23:23] Speaker 02:
There is no federal right to severance.

[00:23:26] Speaker 02:
And Mr. Burney is appearing to attempt to bootstrap a severance argument into this Chapman claim.

[00:23:34] Speaker 03:
The California Supreme Court... Well, I mean, respectfully, I don't quite see it that way, counsel.

[00:23:39] Speaker 03:
I mean, putting aside the EDPA issue, that

[00:23:46] Speaker 03:
They, you're right, they can't claim that the severance was some type of constitutional error, but they certainly can claim that the Bruton problem is a constitutional error because all the people were being tried together, which is the heart of a Bruton claim.

[00:24:02] Speaker 03:
So that's built into Bruton itself, right?

[00:24:05] Speaker 02:
Yes, however, the application of Chapman is to review the trial that occurred minus the evidentiary error.

[00:24:15] Speaker 02:
Right.

[00:24:16] Speaker 02:
Right.

[00:24:16] Speaker 02:
No, you certainly have to look at the delta.

[00:24:19] Speaker 02:
And I merely wanted to point out for the court that the California Supreme Court discussed severance and correctly stated that a severance motion is reviewed at the time it was made and ruled on.

[00:24:32] Speaker 02:
And at that time, Gray had not applied to Bruton to redacted statements.

[00:24:37] Speaker 02:
And for that reason, the California Supreme Court said

[00:24:40] Speaker 02:
The severance was properly denied under the state court standard.

[00:24:43] Speaker 02:
It then applied gray to the Bruton error and considered Chapman to determine that it was harmless beyond a reasonable doubt.

[00:24:58] Speaker 02:
Turning to the court's comments and the due process claim, the court's comments did not render Mr. Bernie's trial fundamentally unfair.

[00:25:10] Speaker 02:
The question is one of fundamental fairness and not approval or disapproval of those comments.

[00:25:17] Speaker 02:
In this case, there is no evidence that the comments affected presentation of the evidence or the jury's view of that evidence.

[00:25:25] Speaker 03:
So, counsel, you know, I don't disagree with the way the state has laid out the constitutional claims that we have to analyze.

[00:25:38] Speaker 03:
But I have to tell you,

[00:25:41] Speaker 03:
some of these comments by the trial judge are tremendously concerning and whether they render the trial fundamentally unfair is a different question.

[00:25:51] Speaker 03:
But I mean, when the trial judge says,

[00:25:55] Speaker 03:
Everybody should believe in it, meaning the death penalty, California has executed one guy so far and even though we take forever to finalize these things and they do go on, they are to pick up their Baskin-Robbins ticket to step into the gas chamber.

[00:26:11] Speaker 03:
I mean, in any case, this is to me unacceptable but in a death penalty case, I mean, presumably, the warden and the attorney general

[00:26:25] Speaker 03:
also feel that this has no place in the courtroom.

[00:26:30] Speaker 02:
Well, Your Honor, I'm not going to defend the comments as dignified.

[00:26:34] Speaker 02:
They certainly were not.

[00:26:35] Speaker 02:
But the court said that fundamental fairness was a different question.

[00:26:39] Speaker 02:
And respectfully, that is the question that is before the court today.

[00:26:42] Speaker 02:
As this court recognized in Duckett v. Godinez, it does not have supervisory powers over state court judges.

[00:26:50] Speaker 02:
And the sole question is fundamental fairness within the meaning of due process and the Constitution.

[00:26:55] Speaker 02:
And to that end, there is no evidence that these comments affected the trial, either the presentation of evidence or the reception of that evidence by the jury.

[00:27:05] Speaker 02:
The trial was five months long and the reporter's transcript is over 2,000 pages.

[00:27:13] Speaker 02:
The bulk of these comments came from voir dire and can be seen as an effort to put the jury at ease in an unfamiliar situation.

[00:27:26] Speaker 02:
Bernie has failed to establish that these comments substantially affected the trial.

[00:27:32] Speaker 02:
The court emphasized the seriousness of the jury's task, and it told the jury to disregard his offhand remarks.

[00:27:41] Speaker 02:
The presentation of evidence and argument was professional, and there is simply no evidence to establish the denial of a fair trial or due process.

[00:27:52] Speaker 02:
California Supreme Court reasonably denied this claim as meritless.

[00:27:56] Speaker 02:
The district court properly denied the claim, and I would ask this court to affirm its judgment.

[00:28:05] Speaker 02:
The last thing I neglected to say regarding the Bernie error is my friend mentioned that the Bruton error bled into the penalty phase.

[00:28:16] Speaker 02:
However, I would read from the California Supreme Court's

[00:28:22] Speaker 02:
opinion regarding this as I'm a little confused because the California Supreme Court said that the prosecutor did not refer at the penalty phase of the trial to the redacted statements of the co-defendants which were not admitted into evidence against Bernie and the jury was instructed not to consider those statements as evidence against Bernie at the penalty phase.

[00:28:42] Speaker 02:
That's excerpts of records 214, 215.

[00:28:46] Speaker 02:
So there was certainly no brutal error in the penalty phase.

[00:28:51] Speaker 02:
Pending any questions?

[00:28:56] Speaker 03:
Thank you.

[00:29:04] Speaker 03:
Take your time to get organized.

[00:29:42] Speaker 00:
First of all, if I may, I would like to take us to your honor's concern with what Bernie himself said during his interrogation.

[00:29:54] Speaker 00:
And I think there's a transcription error or confusion here about exactly what Bernie said.

[00:30:02] Speaker 00:
When you were saying that, I was thinking, I don't remember Bernie saying I was the one who wanted to kill him.

[00:30:07] Speaker 00:
And I think if you look at this,

[00:30:10] Speaker 00:
You didn't we are on for er 978 at the top of the page Once you go ahead my my numbering is a little bit different but go ahead and I think what you may have

[00:30:30] Speaker 00:
been referring to is where Bernie said, I wasn't looking at him.

[00:30:35] Speaker 00:
I just know he didn't say nothing.

[00:30:38] Speaker 00:
I opened the trunk.

[00:30:39] Speaker 00:
I wasn't looking at him.

[00:30:40] Speaker 00:
And I was like, no, man, can't do this.

[00:30:43] Speaker 00:
And I was like, you got to kill him.

[00:30:45] Speaker 00:
You got to kill him.

[00:30:46] Speaker 00:
So I think that might be what you were referring to, Your Honor, when you were saying he's the one who was saying, I had to do it.

[00:30:54] Speaker 00:
And so then what happened?

[00:30:55] Speaker 00:
I killed him.

[00:30:58] Speaker 00:
in light?

[00:30:59] Speaker 03:
Well, I can tell you what I am looking at here is what on my page is at the top right is 978 out of 1361 and then in the bottom right, 2823.

[00:31:14] Speaker 03:
I wasn't looking at him.

[00:31:16] Speaker 03:
I just know he didn't say nothing.

[00:31:18] Speaker 03:
I opened the trunk.

[00:31:19] Speaker 03:
I wasn't looking at him and I was like, no, man, can't do this.

[00:31:23] Speaker 03:
And I was like, you got to kill him.

[00:31:25] Speaker 03:
You got to kill him.

[00:31:27] Speaker 03:
Officers so then what happened I killed him correct.

[00:31:30] Speaker 00:
That's what I was just looking at as well And that's why I think it's a confused.

[00:31:35] Speaker 00:
I think this is pretty clearly a confused young man Saying I was like no man.

[00:31:40] Speaker 00:
I can't do this and I was like

[00:31:42] Speaker 00:
You've got to kill him.

[00:31:43] Speaker 00:
You've got to kill him.

[00:31:44] Speaker 03:
But I was reading it correctly in the transcript, yes?

[00:31:47] Speaker 00:
Yes, correct.

[00:31:48] Speaker 03:
All right, go ahead.

[00:31:49] Speaker 00:
But I think that's an error, especially if you keep reading down what happened.

[00:31:53] Speaker 00:
I killed him.

[00:31:54] Speaker 00:
And then at the bottom of that same page, Bernie, and I was like, no, man.

[00:31:59] Speaker 00:
I was like, no, no.

[00:32:00] Speaker 00:
You know?

[00:32:01] Speaker 00:
You know, do it.

[00:32:02] Speaker 00:
You know?

[00:32:03] Speaker 00:
Just leave him there.

[00:32:03] Speaker 00:
He won't.

[00:32:06] Speaker 00:
So it's very confused who he's speaking to, who's saying what, who's saying what.

[00:32:12] Speaker 00:
He won't, you know, he won't say nothing.

[00:32:16] Speaker 00:
He won't say nothing.

[00:32:17] Speaker 00:
But one of the others kept saying, no, you've got to kill him.

[00:32:20] Speaker 00:
You've got to kill him.

[00:32:21] Speaker 00:
So there he's making it clear that it was one of the others saying, no, you've got to kill him.

[00:32:26] Speaker 00:
And that's the words he used up above.

[00:32:27] Speaker 03:
Well, he also said earlier in the transcript that he didn't even know that the person was in the trunk.

[00:32:34] Speaker 00:
That was, yes, he went through the story six different times.

[00:32:37] Speaker 00:
He was taken by the police six different times through the whole version.

[00:32:41] Speaker 00:
And it changed substantially every time, which is why I started out by talking about his vulnerability, his emotional youth.

[00:32:52] Speaker 00:
He was not a sophisticated person here at all.

[00:32:59] Speaker 00:
And eventually the police kept

[00:33:02] Speaker 00:
telling him no but this is what happened but this is what happened we know it's what happened and he would echo them and eventually he did get to where he was broken down sobbing saying I'm so sorry I wish I could take it all back and that's where he talked about he was the one who fired the shot but I do read differently I don't think he ever said I was telling the others we have to kill him I think he was saying

[00:33:29] Speaker 00:
they were saying, you got to do it, you got to do it.

[00:33:32] Speaker 00:
But again, this is open to interpretation.

[00:33:35] Speaker 00:
But I just wanted to clarify how I read it.

[00:33:38] Speaker 00:
And then with regard to the overall fundamental fairness of this trial, I mean, the claims really do come together.

[00:33:49] Speaker 00:
And that you had a situation in which there could have been decisions made by the judge

[00:33:58] Speaker 00:
that would not have resulted in such fundamental error.

[00:34:04] Speaker 00:
Everything was racialized at that point in time.

[00:34:09] Speaker 00:
Everybody was more aware of race than at many other times, well, in recent history at least.

[00:34:17] Speaker 00:
with the recent Rodney King violence that had been everywhere and had been incredibly racialized, with the carjacking hysteria, which was brought into the courtroom by this being one of the first convictions on carjacking basis, with an all-white jury, or at least a jury with no black people and no Asians, and with all black defendants, and with a judge who kept referring to race, there was

[00:34:48] Speaker 00:
no way that Sean Bernie could get, and he didn't get, a fair trial here.

[00:34:52] Speaker 00:
He was a kid, barely 18 years old, low IQ, emotionally very young, who found himself in circumstances where he was dependent on others, where he was terrified of being thrown out, of being shot because he didn't have blood on his hands and could turn on the others.

[00:35:15] Speaker 00:
He did something

[00:35:17] Speaker 00:
horrible in the heat of the moment.

[00:35:22] Speaker 00:
But he is not the worst of the worst, by far.

[00:35:26] Speaker 00:
He is not whom the Constitution imagines when it considers the death penalty.

[00:35:35] Speaker 00:
And I ask your honors to take that into account when reviewing the claims here.

[00:35:39] Speaker 03:
We thank council for their arguments the case just argued is submitted and with that we are adjourned.

[00:35:47] Speaker 03:
Thank you.