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Case number 18-5315, Dwayne Joseph Johnson, repellent, versus Edie Wilson, warden.

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Mr. Lincoln, repellent, Mr. Wilson.

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Good morning and may it please the court.

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My name is Amanda Sterling and I represent the appellant Dwayne Joseph Johnson as pro bono counsel.

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If I may, I would like to reserve three minutes of my time for a while.

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The record in this case is clear.

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Mr Johnson was deprived of his constitutional right to the effective assistance of counsel on direct appeal from his convictions.

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Mr Johnson was sentenced to 51 years to life in prison almost 25 years ago at the age of 17.

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His convictions were affirmed by the D.C.

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Court of Appeals shortly thereafter.

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Mr. Johnson did not know at the time and did not learn until many years later that his counsel at trial and on direct appeal had previously represented Victor Williams, a critically important government witness who testified against Mr. Johnson, who is the most central figure to the defense theory of the case, and who, on the defense theory, would be guilty of felony murder.

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Mr. Sullivan claims that he never discovered the fact of his prior representation of Mr. Williams.

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We submit that the record tells a different story.

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And critically, even with this court to disagree with us.

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But the magistrate judge on the district court found against you on this point.

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Yes, Your Honor.

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So your Kyler claim fails unless you persuade us that that finding a fact about the attorney's knowledge was clearly erroneous.

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Yes, Your Honor, and we submit that it was clearly erroneous.

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As we discuss in our briefs, we think that Mr. Sullivan's testimony was internally inconsistent.

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We think that portions of it were logical.

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And we think that when viewed in light of the factual record taken as a whole, including how he defended the case and how the choices that he made as counsel.

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The representation had occurred many years before, right, seven or eight years earlier.

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It had, Your Honor.

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And I assume

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For this, this is a high volume practice.

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This lawyer probably would have represented hundreds of clients over that time period.

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That was his testimony, Your Honor.

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And we understand that that was something that the district court relied upon.

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But we think that, actually, particularly in light of his large case volume, it was unreasonable of him to not run complex checks.

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And his testimony about whether or not he ran complex checks is unnecessary.

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And there was actually no connection between the subject matter of his earlier representation and the representation in this matter, wasn't it?

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The lawyer's representation.

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I believe that there was some connection in that the crimes were factually similar in certain respects, and in light of the fact that he would have gained information through that representation that he perhaps could have used in cross-examining Mr. Williams to impeach him.

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I understand your position, and there's, of course, some particular separate opinion to the effect that it was an automatic conflict where he previously represented a witness.

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But as far as any actual conflict, is there one, any continuing duty to that prior client

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I believe there is, Your Honor.

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I think that the duty of loyalty and the duty of confidentiality does not terminate with the death of the attorney-client relationship.

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It does not.

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Does the duty of the attorney to the client, once the case is over in which he represents them, extend to matters that happen after the representation?

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I understand fully the duty as to, for example, communication within the time of

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representation that that confidence extends until the death of the lawyer and beyond.

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But as far as the duty of loyalty as a freestanding duty, is there one with respect to matters that occur after the representation has ceased?

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I believe there is, Your Honor.

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I believe that in cases... What's the source of that belief?

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I believe that there is case law, and I believe that the D.C.

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professional rules would have constrained Mr. Sullivan's representation at that time.

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It is possible that, I think, as Your Honor suggests, the conflict of interest may have been waivable.

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We're not suggesting that it wouldn't be waivable.

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It is certainly waivable.

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We think that it would have been waivable, but it needed to be raised, and it simply was never raised.

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And I think that, again, the...

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volume and nature of confidential information that he might have gained through that attorney-client relationship, which again lasted for more than a year, involved taking the case to the eve of trial multiple times and then ultimately securing a very favorable plea bargain on behalf of his client.

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presumably didn't enable him to gain a lot of confidential information that he was then able to use, or that he would have been able to use in cross-examining Mr. Williams, and again, in casting him as the alternative perpetrator under the defense theory of Mr. Johnson's case.

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To prevail on your claims, do you have to make some showing about the alternative defense theory had at least enough heft to it that the raise

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reasonable questions that could have influenced the outcome of the case.

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I believe the test under Kyler is whether there is a legitimate strategy that was not pursued because of the conflict of interest.

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And I think, Your Honor, that the record is clear that in this case, Mr. Sullivan did fail to undertake very basic steps that, candidly, we think any competent attorney would have undertaken that would have been inconsistent with Mr. Williams's interests.

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Does it qualify as a legitimate strategy under that test, given that even if someone had been able to impeach Mr. Williams much more vigorously than occurred here, we still had three other witnesses who told the same version of events as Mr. Williams, and you had some pretty powerful forensic evidence that seemed to contradict

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the client's theory of the defense.

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Your Honor, we disagree with the assessment of the strength of the forensic evidence.

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We actually think that the state's physical evidence was very weak.

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They never had a murder weapon.

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There were no fingerprints that directly linked Mr. Johnson to the crime.

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No, no, no.

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I'm talking about where the bullet, the angle from which the bullet

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came in, the two shots came in, which is fully consistent with what all four witnesses, and even if we take Mr. Williams out, three witnesses testified and seems to be nigh impossible to have happened through a fight in the backseat of the car.

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I think that if you look at Dr. Germania's testimony, that actually casts some doubt on that.

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Dr. Germania conceded that he had no way of knowing what position Mr. Nash was in at the time that he died.

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He could have been turned around.

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meaning there just was simply no way to know.

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But it's undisputed that Nash, Keith Nash was in the driver's seat.

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That was undisputed.

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And Victor Williams was in the far right-hand back seat of the car.

[00:07:32] Speaker 04:
Yes, that's correct.

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So if Williams, if this altercation started not by Johnson,

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trying to rob Nash, but Williams trying to rob Johnson with a gun in the back right of the car, and you have an entrance wound on Nash's head, left side, three inches away.

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That's pretty hard to understand how that could have happened on Johnson's account.

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I'm not certain it is, Your Honor.

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If you believe the defense theory of the case,

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effectively a conspiracy among the other members of the car to hold Mr. Johnson at gunpoint for drugs or money.

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And it is entirely plausible under that theory of the case that the person who kind of was involved in bringing this situation to where it was and driving the car to its final destination at the end of an alley, which by the way was right by Mr. Williams's house and substantially out of the way from where Mr. Johnson was coming from and purportedly going,

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that he would turn around if there was a struggle and things began to not go as planned.

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And in turning around, he might have exposed the left side of his head to the right corner of the back seat.

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I don't think that that is possible.

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Do you think a driver in that situation would turn to his left rather than to his right?

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I think it's possible that he would, particularly if Mr. Johnson were trying to leave the car through the back driver's side door.

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But critically, Your Honors, even if you disagree with us on the Kyler claim,

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We do think that the record establishes that Mr. Johnson is entitled to relief, or sorry, if you disagree with us on the Kyler claim, we nevertheless think that Mr. Johnson is entitled to relief on the Strickland claim, because there were at minimum, the Strickland claim, your honor, because there were at minimum very plausible theories that we think that if they had been properly developed would have withstood a reasonable probability of success.

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The Strickland claim is even harder for you

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on the issues we've just been discussing, right, because Kyler is prejudice light.

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You only have to show that the attorney's performance was somehow impacted.

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Strickland is prejudice, and that's a moderately high standard.

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So if the difficulty for your side of the case is all of this other independent evidence against Johnson,

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Your case gets harder when you move from Strickland, from Kyler to Strickland.

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We understand that the prejudice inquiry under Strickland is more demanding than the adverse effects inquiry under Kyler.

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But ultimately, we think that if you do step back and you look at the quantum of the state's evidence, this is not as easy a case as it appears at first glance.

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The witnesses did, for reasons that were unknown to the defense prior to trial, have interlinking motives to testify similarly.

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The physical evidence was not conclusive.

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Additionally, Your Honor, we submit that had Mr. Johnson been counseled properly by his trial counsel about the state's physical evidence, he probably, he may not have testified the same way.

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It is possible that he wouldn't have testified with the same scope.

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And it is, I think, possible that the defense could have developed its own physical evidence or found better ways to explain the physical evidence than were in fact offered at the trial.

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had adequate pre-trial investigation been conducted, and that was not done here.

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And that gave rise to reasonably plausible and effective assistance.

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If he doesn't testify, then the lineup is four to nothing against him instead of four to one against him, in terms of what the witnesses say.

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I don't think we're... We'll see how that helps him.

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I'm not sure that we're saying that he wouldn't have testified at all, but I think he certainly would have been better prepared.

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Mr. Johnson was a 17-year-old kid who had this very traumatic thing happen to him.

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Trial happened, I believe, nine months afterward.

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And I do think that it is more than plausible that his counsel could have helped him reconstruct and remember the events of the evening in a way that was more helpful to the defense case, certainly without overstepping his boundaries as an officer of the court as well.

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So we think that for those reasons there was, at minimum, an adverse effect because he effectively

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failed to vigorously pursue the defense theory of the case.

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And we think that that is clear from the trial transcripts.

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And then we contend that by doubling down on his trial level failures on appeal and by failing to kind of exploit the weaknesses and the discovery that the defense received from the state, he rendered ineffective assistance under Strickland on appeal as well.

[00:12:27] Speaker 04:
Can I just give a quick fact question?

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You talk about the 1994 arrest of Mr. Williams shortly before trial, and it was no paper.

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Do you – is there any evidence in the record or public record evidence, whether it was the same prosecutor that was prosecuting Mr. Johnson?

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There is no evidence in the record of that, Your Honor, and I'm not sure that those facts are available to us, in part just because of the amount of time that has passed.

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But we do think that it would have nevertheless provided credible evidence of bias upon a defense proffer to that effect.

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Okay.

[00:13:03] Speaker 00:
Thank you very much.

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I see that I'm over time, so I will – Thank you very much.

[00:13:22] Speaker 03:
Good morning and may it please the court, Sharon Sprague on behalf of the United States, representing Warden Eric Wilson.

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The district court here did not clearly err by finding that Judge Sullivan did not recognize Mr. Williams as a former client.

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And that is the threshold inquiry that's critical, and it puts an end to the Kyler argument.

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The Palin here is really raising the same arguments that were made in the district court about Mr. Sullivan's credibility, Judge Sullivan's credibility.

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And all of those challenges were extensively, thoroughly, and thoughtfully examined by the district court, first in the 84 page report by the magistrate judge, and then in a 17

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page opinion reviewing it all by Judge Boesberg.

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Appellant also, at that point, there's a procedure, of course, in place to register objections to such a report, and then a procedure for the district court judge to look at those challenged points more closely.

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And in that challenge, I believe there were only three things that appellant identified.

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Judge Bosberg focused on.

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But in the end, he also adopted the entire report.

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In that report, and their conclusion was that Mr. Sullivan's credible testimony was that he did not recognize him at trial.

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And in fact... Is it ineffective to have... Is part of the ineffectiveness, at least, that he had no conflict check?

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process?

[00:15:05] Speaker 03:
Well, that question was thoroughly examined, and I would say in this context, the answer is no, because perhaps that would be relevant to a general Strickland Ineffectiveness Test.

[00:15:18] Speaker 04:
It just struck me as, I was rather shocked that he had no, I get we have computers now.

[00:15:25] Speaker 03:
Well, sadly.

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But we had paper back then, and we had authorization, and we had files.

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Lawyers and law firms have managed to check for conflicts for long before computers came along.

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And the notion that he did nothing other than go with his memory, which would seem to be profoundly flawed in this regard.

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Maybe he's too busy to have that memory, but it's deeply troublesome that he made no real effort to check for conflicts.

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That's very troublesome.

[00:15:57] Speaker 03:
Well, I think that we have to put ourselves back in that context.

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And sadly, I was practicing in that courthouse in those years trying these cases.

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But it was not irrational, and both Magistrate Judge Harvey and Judge Busberg agreed with us, that he would not have conducted

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a particular conflicts check, that he would not have a system in place.

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He did have not just hundreds of cases and thousands of cases, but this case was eight, maybe ten, eight to ten years before Mr. Johnson's case.

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And it didn't go to trial.

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It was a plea.

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And interestingly, there's no evidence, in fact, there's evidence, suggestion in the record that Mr. Williams didn't represent, didn't recognize Mr. Sullivan.

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Now, Mr. Williams didn't have hundreds and thousands of cases.

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Well, one of them has a professional obligation here, right?

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Correct.

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Right, Mr. Williams didn't.

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And so, it's just still...

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it may not change the fact that he didn't actually know about the conflict, which is what... Which I think is the linchpin, because... Yes, but it struck me as whether there's sort of an overarching question here of whether that itself was ineffective.

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Well, his professional obligation was explored, of course, in response to a bar council complaint on this very topic.

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And it was also explored by Judge Cannon when the

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the 4th 23110 was presented to him in the Superior Court.

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So I think it has been quite fully explored.

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But either way, appellant argues in their brief that the fact that he didn't have a conflicts checked of the kind that we would like to see, perhaps, means that he can't be believed.

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I just want to be clear.

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This is more than we would like to see.

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far below what one would expect from attorneys.

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Certainly now, in terms of the mechanism for doing a confluence check, I would agree with that court completely.

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But the point is that he, the appellant's argument is that if he didn't, because he didn't have that conflict check, we can't believe him that he didn't know, that he didn't recognize Judge Sullivan wouldn't recognize Mr. Williams.

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And that there's a clear fallacy in that argument because

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whether we think he should have done something differently or not.

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That only supports the notion and the factual finding made by Judge Bosberg and Judge Harvey that he did not, in fact, recognize Mr. Williams.

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In any event, even if you disregarded his testimony, even if you concluded that it was not credible at all, to this day, appellant has not explained how anything that happened at the trial, anything Judge Sullivan did or did not do, was because of this assertive conference.

[00:18:53] Speaker 04:
We should just call him Mr. Sullivan, because he was not a judge at the time he did this trial.

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I don't want anyone to be confused.

[00:18:57] Speaker 03:
Oh, OK.

[00:18:57] Speaker 03:
I'm sorry.

[00:18:58] Speaker 03:
So let's just refer to him as Mr. Sullivan, please.

[00:19:00] Speaker 03:
I'm happy to do that, Your Honor.

[00:19:02] Speaker 03:
It's just a habit.

[00:19:04] Speaker 03:
I'm sorry.

[00:19:06] Speaker 03:
I think they had never explained how any of the alleged deficiencies were the product of this divided royalties.

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I think they have in the sense that he did not do anything.

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Mr. Johnson's theory was it wasn't me, it was Williams, Mr. Williams.

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Among the long list of objections they have to what Mr. Sullivan did was that you didn't do anything to investigate Mr. Williams in a way that would allow you to be much more aggressive in cross-examining him and bringing information out.

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And then it may not just be that one thing, but they get to say there's a cumulative effect here of a number of errors.

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And you combine that with the fact that we didn't know about incredibly powerful impeachment evidence

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in their view, like the 1994 No Papering just a couple weeks before trial and the nature of the prior conviction and then a long list of other objections to ready evidence that wasn't disclosed or was disclosed in a very late time.

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And what I'm wondering is, it seems to me that

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it's not quite right to say that they haven't shown what the problem is.

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I think they say there was this conflict and that might have made that aspect even worse.

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And then when you mix it in with all these other problems, how can anyone have confidence in this verdict?

[00:20:29] Speaker 03:
They certainly assert that those things happened.

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But those challenges, those allegations were thoroughly examined by Judge Harvey and Judge Boasberg, who concluded that they were overstating the evidence and misstating the evidence.

[00:20:41] Speaker 03:
I hate to use that

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characterization in a court, but that's what Judge Boesberg said, that this was an overstatement, and Judge Harvey, this was an overstatement of the evidence and ignoring certain other evidence in the record.

[00:20:57] Speaker 03:
So the testimony was not that he did nothing, the testimony was this occurred 20 years ago, and I don't remember the details of this particular case, but let me tell you what I would do in my normal cases.

[00:21:12] Speaker 03:
And he lays out investigative things that he would have done and he would have had his investigator done.

[00:21:19] Speaker 04:
If he'd done his normal things, would he have discovered that he represented one of the key witnesses?

[00:21:25] Speaker 04:
It would have been a little hard to miss that, wouldn't it?

[00:21:27] Speaker 04:
He would have gone and got his criminal record and pulled it up and seen it.

[00:21:31] Speaker 03:
It's hard to say.

[00:21:31] Speaker 03:
I mean, he was given, at that point in time, you wouldn't know.

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who represented the person until you got the hard copy file, and that took two weeks to get.

[00:21:43] Speaker 03:
You could find.

[00:21:44] Speaker 04:
I have not been a criminal defense attorney, but I assume they do more than just go, oh, here's a conviction.

[00:21:51] Speaker 04:
When they find a conviction, particularly a robbery conviction, and this is a case involving who did this robbery, which in theory instigated this situation, at least under one theory, and they would look into it.

[00:22:06] Speaker 03:
Well, and all of those convictions were ultimately disclosed at trial or before trial.

[00:22:12] Speaker 03:
So there's nothing about any convictions that have not been, was not adequately disclosed.

[00:22:17] Speaker 03:
And once those are disclosed, the defense can investigate those things as well.

[00:22:21] Speaker 04:
What about their argument that it was too, much of the stuff was, not everything was disclosed, like the 1994 No Papering.

[00:22:27] Speaker 04:
But as to the things that were disclosed, like that conviction, what about, what is your response to their argument that it was too late at that point?

[00:22:34] Speaker 03:
There's no indication in the record that anything happened to stop the trial and do any additional investigation.

[00:22:41] Speaker 03:
And Judge, excuse me.

[00:22:43] Speaker 03:
Well, that's fair point.

[00:22:43] Speaker 03:
Mr. Williams wasn't really investigating.

[00:22:45] Speaker 03:
No.

[00:22:45] Speaker 03:
I'm sorry.

[00:22:46] Speaker 03:
I disagree.

[00:22:47] Speaker 03:
Mr. Sullivan.

[00:22:48] Speaker 03:
But Mr. Sullivan explained exactly why he did what he did.

[00:22:55] Speaker 03:
And the court found both Judge Cannon in the DC Superior Court, affirmed by the DCCA, and then again now in our district court,

[00:23:04] Speaker 03:
His approach was not irrational, and it made sense.

[00:23:14] Speaker 03:
There was very little use that could have been made beyond what was made.

[00:23:18] Speaker 03:
Those convictions were valuable for impeachment.

[00:23:21] Speaker 03:
but the factual details of them would not have been admissible.

[00:23:26] Speaker 04:
What about the 1994?

[00:23:27] Speaker 04:
Yeah, I was about to address that if I could have another minute or so.

[00:23:31] Speaker 04:
You agree there's just nothing to record?

[00:23:33] Speaker 04:
We have no way of knowing that it was the same prosecutor or not, or do we?

[00:23:36] Speaker 03:
We have no way of knowing.

[00:23:37] Speaker 03:
I think one thing that I do want to remind the court is that when a case like that is no papered, it's no papered at that moment.

[00:23:45] Speaker 03:
When the police bring the...

[00:23:47] Speaker 03:
the arrest information to the prosecutors to decide what to do with it.

[00:23:52] Speaker 03:
So the prosecutor's office – my office – decided not to prosecute.

[00:23:57] Speaker 03:
But there is – if there had been some sort of link between that decision and Mr. Williams' testimony sometime later,

[00:24:07] Speaker 03:
Appellant could have been able to show that, I think, by now.

[00:24:10] Speaker 03:
But there has been no explanation.

[00:24:13] Speaker 03:
There's no showing of any promise by the government to go easy on him.

[00:24:21] Speaker 04:
They just didn't want their witness coming in and having to admit that he was under prosecution at that very time.

[00:24:28] Speaker 04:
Was that also a robbery?

[00:24:31] Speaker 03:
There is nothing in the record to suggest that the person, that the part of the office who decided not to paper this case, in other words, that it wasn't... Well, there's nothing to suggest because it wasn't disclosed to them, and so no one... This was not disclosed at all.

[00:24:45] Speaker 04:
This wasn't a late disclosure.

[00:24:46] Speaker 04:
It wasn't disclosed at all, and so no investigation was done until way too late.

[00:24:50] Speaker 03:
The only way in which this is relevant is it would potentially go to bias, right?

[00:24:55] Speaker 03:
We understand that context.

[00:24:56] Speaker 03:
So if the government wants to...

[00:25:02] Speaker 03:
hold an arrest over a witness's head in order to testify, we know how to do that.

[00:25:10] Speaker 03:
And it's not by dismissing their case before anything happens in the case we want their cooperation in.

[00:25:14] Speaker 04:
Well, I get that.

[00:25:15] Speaker 04:
There's two ways to do it.

[00:25:16] Speaker 04:
That's one approach.

[00:25:17] Speaker 04:
Another would be we just don't want to mess up his work.

[00:25:19] Speaker 04:
We don't want him to have more of a record when he comes in to testify.

[00:25:22] Speaker 04:
That's not holding anything over his head.

[00:25:25] Speaker 03:
Well, that's an interesting theory.

[00:25:26] Speaker 03:
But that would mean, I think, Your Honor, that we couldn't

[00:25:32] Speaker 03:
that would fly in the face of a lot of case law that talks about mere arrests not being relevant compared to convictions.

[00:25:41] Speaker 04:
It's not case law.

[00:25:41] Speaker 04:
This is just what some attorney would be able to argue.

[00:25:43] Speaker 04:
That's all.

[00:25:44] Speaker 03:
Yeah.

[00:25:44] Speaker 04:
Had the Brady evidence been disclosed.

[00:25:46] Speaker 03:
Well, the case law that I'm referring to is what's admissible and what isn't admissible.

[00:25:49] Speaker 03:
So you can't argue things that aren't admissible.

[00:25:52] Speaker 03:
And I think for that reason, Judge Boasberg made a

[00:25:56] Speaker 03:
his finding that Mr. Sullivan's decision making and his strategy was a sound one and did not rise to the

[00:26:06] Speaker 03:
very tough standard of ineffective assistance, which, of course, we know how much deference is given to strategic decisions and to – there's a wide range of acceptable representation.

[00:26:22] Speaker 03:
So there's nothing to suggest that those conclusions should be overturned here.

[00:26:27] Speaker 03:
And more importantly, as both those judges in the district court recognized, there was so much other evidence.

[00:26:36] Speaker 03:
It was a strong case.

[00:26:37] Speaker 03:
There were three eyewitnesses.

[00:26:39] Speaker 03:
The forensic evidence completely lined up.

[00:26:44] Speaker 03:
And I think it's much more likely that someone in the driver's seat would turn right to look in the backseat than to turn left.

[00:26:54] Speaker 03:
But all of that.

[00:26:56] Speaker 03:
that I just heard in that part of the argument is speculation and inappropriately considered.

[00:27:01] Speaker 03:
I urge the court to affirm the denial of the petition.

[00:27:05] Speaker 04:
Thank you very much.

[00:27:06] Speaker 04:
I think Ms.

[00:27:09] Speaker 04:
Sterling was out of time.

[00:27:11] Speaker 04:
We'll give you two minutes.

[00:27:24] Speaker 04:
Did you have any impeachment evidence or do any of your Brady claims or insufficient investigation claims pertain to Sharon Nash?

[00:27:34] Speaker 00:
Yes, Your Honor.

[00:27:36] Speaker 00:
Ms.

[00:27:36] Speaker 00:
Nash was carrying a gun the night of the crime and she tried to give that gun to her brother.

[00:27:39] Speaker 00:
She claimed that it was so that he could reasonably defend himself against an armed attack.

[00:27:44] Speaker 04:
Is that a Brady – you knew that.

[00:27:48] Speaker 04:
This isn't a Brady claim, is it?

[00:27:50] Speaker 00:
I don't believe the defense did know that prior to trial.

[00:27:52] Speaker 00:
I believe that Sharon Nash's testimony at trial was a surprise, and I think that had the defense been in the possession of that information before trial, they would reasonably have been in a position to develop.

[00:28:03] Speaker 04:
Were you given a timely disclosure of the witness statement?

[00:28:06] Speaker 00:
Correct, Your Honor.

[00:28:07] Speaker 04:
You were given a timely, were you given a timely disclosure?

[00:28:10] Speaker 00:
The record is unclear as to when exactly the defense learned about it.

[00:28:14] Speaker 00:
It does not.

[00:28:15] Speaker 04:
It's pretty important for you to have a claim.

[00:28:18] Speaker 00:
I think, Your Honor, that we have no record of it being part of any Brady or Giglio disclosures.

[00:28:23] Speaker 00:
It was not in the materials that we received from the government.

[00:28:25] Speaker 00:
It is not in the client's case files.

[00:28:27] Speaker 00:
And Mr. Sullivan did not appear prepared to fold that into the defense area of the case of trial.

[00:28:33] Speaker 00:
And we think that that's very important because I think had

[00:28:36] Speaker 00:
the defense accounted for that information properly in its kind of theory of the case, I think – I think the fact ultimately supports the notion that there was a broader conspiracy among the members of the – that the occupants of the vehicle and that Sharon Nash was part of that.

[00:28:54] Speaker 00:
But critically, there's no way that Mr. Johnson could have known about that.

[00:28:58] Speaker 00:
And if I could just take a moment to correct the record.

[00:29:01] Speaker 00:
on a couple of other issues that I believe came up during the government statements.

[00:29:05] Speaker 00:
The 94 arrest was on felony robbery charges.

[00:29:08] Speaker 00:
Again, it was no paper.

[00:29:11] Speaker 00:
And the only intent that matters for purposes of that – it's not the prosecution's intent that matters.

[00:29:18] Speaker 00:
It is the witnesses.

[00:29:20] Speaker 00:
It is the effect on the witness and his motivation to query favor that matters for purposes of the impeachment inquiry.

[00:29:26] Speaker 00:
Additionally, for purposes of Brady and the related disclosures, the fact that Council did not seek a continuance is irrelevant because it is not uncommon for little pieces of information to come out at trial that Council is unable to appreciate the significance of in real time.

[00:29:44] Speaker 00:
I would like to focus this court's attention on the only prejudice inquiry that really truly matters for purposes of this appeal.

[00:29:49] Speaker 00:
And that is the prejudice that Mr. Johnson sustained with respect to his direct appeal.

[00:29:55] Speaker 00:
This court does not need to stand in the shoes of the Court of Appeals and conclusively decide whether Mr. Johnson would be entitled to relief under Brady or Giglio or for ineffective assistance of trial counsel.

[00:30:06] Speaker 00:
That is for the DC Court of Appeals.

[00:30:08] Speaker 00:
But I think the question is, should these claims have been raised on appeal?

[00:30:12] Speaker 01:
Wait, why not though?

[00:30:14] Speaker 01:
Your theory before us is ineffective assistance of appellate counsel for failure to raise Brady claims and ineffective assistance of trial counsel claims.

[00:30:30] Speaker 01:
That failure can't be ineffective if those underlying claims lack merit.

[00:30:36] Speaker 00:
It is true that you have to look to the merits of the underlying claims to decide it, but you don't need to decide by a preponderance standard that they're likely to succeed.

[00:30:46] Speaker 00:
That, in fact, would be inconsistent with the prejudice inquiry under Strickland, which requires only a reasonable probability that a claim's

[00:30:56] Speaker 00:
that a claim be likely to succeed.

[00:30:58] Speaker 00:
We're making a difference.

[00:31:00] Speaker 00:
Yes.

[00:31:00] Speaker 00:
Yes, Your Honor, that's correct.

[00:31:01] Speaker 04:
So it's reasonable probability squared, right?

[00:31:03] Speaker 04:
Reasonable probability that the D.C.

[00:31:05] Speaker 04:
Court of Appeals would have found a reasonable probability.

[00:31:08] Speaker 00:
Exactly so, Your Honor.

[00:31:09] Speaker 00:
And can we be confident, given that these issues, which I think are troubling, are very troubling, were not raised on appeal, can we be confident that Mr. Johnson received a fair shake on appeal?

[00:31:20] Speaker 00:
And we submit that the answer is no.

[00:31:21] Speaker 04:
Thank you very much.

[00:31:22] Speaker 04:
Thank you, Your Honor.