[00:00:04] Speaker 02:
Good morning, Your Honors.

[00:00:05] Speaker 02:
I'm Heather Pickrell.

[00:00:06] Speaker 02:
I'm appearing on behalf of Petitioner Appellant Bradley Wright.

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I would like to reserve four minutes for rebuttal.

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the trial court violated Chambers when it decided to disqualify his court-appointed ballistics expert and immediately deny continuance to find a substitute ballistics expert.

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The California Court of Appeals affirmance of these two decisions relied on a series of unreasonable determination of facts.

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This court should therefore apply de novo review to Wright's Chambers claim and grant federal habeas relief.

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The number of unreasonable determination of facts here simply cannot be understated, whether it came to the trial court's disqualification of Dr. Carell or its immediate denial of a continuance to find a substitute ballistics expert.

[00:01:07] Speaker 01:
Let's start with the disqualification of Dr. Carell.

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I read the transcript of the trial court and the Court of Appeals decision, and he admitted that he had no formal training of ballistics trajectories or crime scene

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is not merely the evidence that was considered by the California Court of Appeals, but the evidence that the Court of Appeals ignored, neglected to find, failed to consider and failed to weigh.

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Here there was extensive evidence that he was qualified in ballistics, specifically in bullet trajectories.

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Not only had he been qualified 15 to 20 times in ballistics, specifically as he clarified in the trial court in bullet trajectory, he had taught ballistics to the U.S.

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Marine Sniper School.

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He had created a computer program that used bullet trajectories for the U.S.

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for the U.S.

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government.

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The record also showed that he had created a computer program that demonstrated bullet trajectories.

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This, Your Honor, concededly is from the transcript of Delvalar, the separate case that was involved in the underlying proceedings.

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But the California Court of Appeals explicitly stated that it had considered the entire Delvalar transcript when it made its decisions.

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So that was before the California Court of Appeals, and they unreasonably ignored that evidence when it rendered its affirmation.

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It was, in fact, in front of the trial court, Your Honor.

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The prosecutor attached the entire transcript to its motion to disqualify, and I believe at some point the trial court did acknowledge that it had read the transcript between the two days.

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I'm referring to the magistrate judge, the federal district court.

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That's right, Your Honor.

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It was not in front of the district court, but this was through

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Respectfully allies exclusively with the state regardless of whose mistake it is.

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What do we do in reviewing the district court?

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The magistrate judges decision here by using records that were not available.

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If we were to take judicial notice of those documents, what does that do as far as our review process when those records were presented to?

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federal habeas petitions de novo.

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So this court can properly consider the transcript and need not send all of this back for the district court to renew its decision based on the transcript.

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This court of course could do so, but given that you are presented with a de novo opportunity to grant federal habeas relief, that wouldn't be required here.

[00:04:19] Speaker 01:
on attempted murder and convicted on assault with a deadly weapon, and you had three witnesses that testified that he was shooting at Mr. Stewart, and the defendant himself admitted that he shot a gun in the presence of others.

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So why would it matter whether the hole in the door resulted from a shot fired from Mr. Wright or not?

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Yes, Your Honor, the significance of Dr. Krell's testimony again cannot be understated.

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The prosecution's case was razor thin.

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No gun was recovered.

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No bullying or casing that could have been linked to the crime was recovered.

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One of the three witnesses who testified that Wright fired a bullet at Stuart in the door also testified that Wright pointed a gun at her.

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He was acquitted of assault with a firearm based on her testimony.

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clearly she was not a credible witness, nor were the other late persons who chaotically and inconsistently testified about how many bullets were shot, where Wright was standing, where Stewart was standing, even which hand Wright was carrying the gun in, given that one of his hands was broken.

[00:05:26] Speaker 02:
This role in which the prosecutor's expert played in corroborating this chaotic and

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honor.

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Although Wright did admit that he fired a gun in the air, what it boils down to is the prosecutor only had one theory of the crime both to the judge and to the jury in her closing statements, as well as a theory that she reiterated in her opposition to a new motion, that the assault with a firearm was this single shot fired at Cameron in the door.

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Not only should she reiterate this theory exclusively and in triplicate,

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that Wright had fired the bullet in the air.

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It is clear that this prosecutor herself believed that the jury credited this theory and not any other theory that again was not put forth by the prosecution.

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That's why the testimony of the prosecutor's expert was so important and he needed his own expert whether that be Dr. Krell or another ballistics expert

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that.

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First, technically the California Court of Appeals never said no harm no foul.

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There was no harmless error determination and this court must bear that in mind.

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without the EDPA standard.

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Second of all, what Your Honor is referring to is the California Court of Appeals' diligence determination, in which they concluded that Wright never said at any point, either at trial or on appeal, that he could have found a substitute ballistics expert that held the same views as Dr. Krell.

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But Your Honor, this reasoning is inherently unreasonable.

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Of course he couldn't find another substitute ballistics expert that shared Dr. Krell's opinions.

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He was never given an opportunity to.

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would have testified that way.

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So, you know, if we're reviewing the district court, why doesn't that have some meaning for EDPA purposes?

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But Your Honor, for EDPA purposes, what the court must focus on was the record before the trial court and the record on direct appeal.

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This was an intra-record claim.

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extraneous evidence on direct appeal.

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This was not a claim he could have brought in state post-conviction.

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And so to the extent that the court is looking entirely at the record at trial, the determination that he wasn't diligent was unreasonable.

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And at that point, at no point could Wright have brought in this extra record evidence either at trial because he was denied an opportunity to do so or on direct appeal because he wouldn't have been allowed to do so.

[00:08:29] Speaker 01:
let me ask you about chambers you're relating this to chambers is clearly a

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to clarify that in green, the Supreme Court did find that a single evidentiary exclusion violated due process.

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So even though Wright's case is stronger when you take the two exclusions together, this court could grant habeas relief based on the disqualification of Dr. Krell alone.

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As to whether or not the facts of this case perfectly align with Chambers, it does not need to for Wright to attain federal habeas relief.

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If you look at Crane, Green, Rock,

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None of these cases perfectly align with the facts of chambers.

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They involve evidentiary exclusions that do not involve a hearsay exception.

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They involve hypnosis rules.

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They involve exclusions of voluntariness evidence as to the reliability of a confession.

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None of these rules or evidentiary rulings are akin or similar to chambers, and yet chambers relief

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This is not an exception to the hearsay rule.

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It is not an application of the voucher rule, as in Chambers, that doesn't disqualify Wright from federal habeas relief.

[00:10:07] Speaker 01:
And ultimately, your claim is that these errors amounted to a denial of his ability to present the defense of his choosing?

[00:10:14] Speaker 01:
That's correct, Your Honor.

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As aligned with Chambers, he was deprived of reliable evidence that pertained

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critical evidence for his defense, that he could not have fired a bullet at Cameron Stewart as described by the laypersons and by the prosecution's own expert.

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Because he was deprived of his critical defense, he was convicted.

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At heart, that is a chambers violation, no matter which way you cut it.

[00:10:41] Speaker 03:
Counsel, I just want to clarify, and I do apologize for being online and not in person there with you.

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I know it can be difficult.

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was able to testify and give his opinion.

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And are you, is it your position that if the jurors accepted his opinion as true, they would not also be able to find that right fire to gun in Stuart's direction?

[00:11:10] Speaker 03:
I don't know that they're mutually exclusive, that's where my kind of concern lays.

[00:11:14] Speaker 02:
Your Honor, your concern is founded, and in fact it is a concern that several courts have addressed, actually both in Chambers and in the Seventh Circuit Ambon Case in Cush.

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Looking at the facts of Chambers, the issue is whether or not a third party's confession to the crime should

[00:11:33] Speaker 02:
during the trial.

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However, there actually was evidence of that third party confession that was admitted.

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They actually brought the third party to the stand and he read out his confession at the trial.

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But because the defendant was not allowed to impeach him, that was the denial of due process.

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Similarly, as to the second evidentiary ruling, he wanted to introduce the testimony of three witnesses

[00:12:01] Speaker 02:
them that they had murdered the victim.

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One of those persons was actually allowed to testify at the trial.

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So even on the face of chambers, evidence can be cumulative.

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There could be evidence that was critical that was presented.

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It doesn't mean that the excluded evidence wouldn't have substantially affected or injuriously affected the jury's verdict.

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So too in Coupche, the Seventh Circuit

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That the evidence excluded would not have exonerated Kupsch.

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That the evidence only would have narrowed the window in which he could have committed the murder, and it would not have acquitted him in entirety.

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And yet they still granted federal habeas relief.

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So too in Lundbury.

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Lundbury admitted to killing her husband.

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and yet the excluded evidence was still found to be a chambers violation.

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Your honor, even if the jury could have found either that Wright fired the bullet at Karen Stewart or whether he fired the bullet into the air, that still could constitute a harmful error because the jury's verdict was substantially and injuriously affected.

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And that's ultimately what the proper inquiry is here.

[00:13:14] Speaker 01:
I think my colleagues don't have any further questions, so you'll remain for rebuttal.

[00:13:18] Speaker 02:
Thank you, Your Honors.

[00:13:30] Speaker 05:
Good morning, and may it please the Court, I'm Deputy Attorney General Kim Ahrens, appearing on behalf of the respondent.

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This case was governed by the AEDPA, and Chambers is not clearly established.

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qualifications for proposed expert witness.

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Chambers addressed cases applying the hearsay rule or excluding late witness testimony where an evidentiary rule was applied in a mechanical way without any exercise of discretion.

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And so Crane, Green, and the Panetti case all addressed Chambers and granted relief because the rules in those cases were applied in a mechanical way.

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Here, the California Court of Appeals decision acknowledged that an exercise of discretion occurred and therefore,

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the California Court of Appeal did not make any factual determinations in denying the federal component of the claim.

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The court issued a one-sentence denial and distinguished the California rules from the Chamber's holding by citing to People v. Ramos, which is a California Supreme Court case, stating that the foundational requirements governing expert testimony in California are not applied in a mechanical way.

[00:15:10] Speaker 05:
And here, the trial court held a full hearing on Dr. Krull's expertise and exercised his discretion based on the evidence.

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And notably, Dr. Krull was asked at that hearing, how did you become an expert in ballistics?

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And he responded that he had done studies for the Defense Department on contract.

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And then the court questioned him about whether those studies involved bullets, and he admitted that they did not.

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They involved missiles.

[00:15:41] Speaker 03:
Council, I'm going to interrupt.

[00:15:43] Speaker 03:
I do have a few questions for you.

[00:15:45] Speaker ?:
Yes, Your Honor.

[00:15:46] Speaker ?:
What is your position on what is the appropriate burden on a petitioner making a challenge under 2254D2?

[00:15:51] Speaker 05:
And I would also like you to talk about Kitt v. Davis as it relates to your position.

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than the claims fail.

[00:16:29] Speaker 05:
And I'm sorry, I don't recall the Kip case.

[00:16:32] Speaker 05:
Was that cited in the briefing?

[00:16:35] Speaker 03:
I believe it was.

[00:16:37] Speaker 03:
Um, let me move on then.

[00:16:38] Speaker 03:
You also claimed that the evidence of guilt was overwhelming and I didn't, I'm not sure I quite followed that in that I didn't find the testimony of your witnesses or of the witnesses to be very consistent.

[00:16:52] Speaker 03:
Um, and also I'm not sure I would describe it as overwhelming given that the petitioner was found not guilty on two of the three charges, including the most serious charge.

[00:17:01] Speaker 03:
So how do you respond to that?

[00:17:09] Speaker 05:
Gregory Martin also, he's the one who made the 911 call as Petitioner was leaving the scene.

[00:17:15] Speaker 05:
And Petitioner at trial claimed that he fired the gun in the air, but the 911 call demonstrates otherwise because when he called the 911 dispatcher, the dispatcher, he said there's been a shooting and the dispatcher said someone's been shot.

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And he said, no, someone's been shot at.

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I'm not sure if he was hit.

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And he stated this several times, someone's been shot at.

[00:17:40] Speaker 05:
screaming Cameron Cameron looking for the victim and he advised the 911 dispatcher let me find out if he was shot and they finally located Cameron and were asking are you okay and he related to the dispatcher that he had not been hit but he said at least three times somebody got shot at.

[00:18:02] Speaker 05:
Furthermore, petitioner's own testimony was that he charged at the victim when he testified

[00:18:19] Speaker 05:
running with the gun in his left hand and his counsel asked and you kept walking into the driveway he said no I ran and he ran until Cameron came out and then he stopped.

[00:18:31] Speaker 05:
He didn't stop until Cameron came out and that's when he fired the gun.

[00:18:36] Speaker 05:
I'd also like to note that the proffer for Dr. Curl's testimony

[00:18:55] Speaker 05:
that they were lying about it because they didn't like Petitioner and they didn't want him to have custody of the children.

[00:19:03] Speaker 05:
The focus of the testimony and their testimony and why he sought Dr. Kroll was the attempted murder count because he wanted to refute the element of intent to kill and so he wanted to show that they were

[00:19:27] Speaker 05:
in the screen door to argue that there was no intent to kill because Petitioner was firing in a downward trajectory toward the victim's feet, not at his chest or head.

[00:19:41] Speaker 05:
So ultimately, the jury, in light of the 911 call and in light of all of the witness testimony, there was ample evidence that Petitioner was firing in the direction of the victim and that the jury would conclude

[00:19:56] Speaker 05:
especially based on that 911 call, he wasn't pointing in the air.

[00:20:02] Speaker 05:
Counsel, I have a general question for you.

[00:20:05] Speaker 03:
What should our court make of the fact that Dr. Carell was appointed to petitioner's case by the Los Angeles County Superior Court, if anything?

[00:20:17] Speaker 05:
It's unclear because we don't have in the record the document appointing him.

[00:20:23] Speaker 05:
Dr. Krall testified that he was on the panel for firearms operations, classifications, and safety.

[00:20:31] Speaker 05:
There's a separate panel for ballistics.

[00:20:33] Speaker 05:
He didn't state that he was on that panel, but he said under the umbrella of firearm operations, classifications, and safety, that included

[00:20:52] Speaker 05:
and that's not entirely resolved.

[00:20:56] Speaker 05:
The court did know that he believed that he was qualified to testify with regard to bullet trajectories.

[00:21:06] Speaker 05:
What's important is with regard to the request for a continuance to obtain a new expert, Unger and Slappy hold that only arbitrary

[00:21:26] Speaker 05:
The court asked the prosecutor about notice, and she said she notified him twice, in January and February of 2014.

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Trial started in April.

[00:21:38] Speaker 05:
The first notice, she said, and I quote,

[00:21:44] Speaker 05:
I had notified him at an earlier date in January that Sid, the Scientific Investigation Division, objected Mr. Krell based on his lack of qualifications.

[00:21:54] Speaker 05:
Then the courthouse was saying that he, counsel, had some notice of it, the lack of expertise, and the prosecutor responded, yes.

[00:22:02] Speaker 05:
Then defense counsel responded, no, my missing component is reputation, not lack of qualifications.

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clarified, he was missing notice of reputation.

[00:22:19] Speaker 05:
Now, perhaps that was a mistake on his part, and he meant to say he was missing qualifications, but that's what the trial court had before it at the time, is what he said.

[00:22:29] Speaker 05:
Then the prosecutor said she notified him by voicemail in February again, and it was that time she notified him about the other case, the Delvalar case.

[00:22:39] Speaker 05:
At the end of the hearing on Dr. Kroll's qualifications, defense counsel acknowledged the voicemail and said, well, I was only notified about reputation, not qualifications.

[00:22:50] Speaker 05:
So even though he said the notification this time was about reputations, he nevertheless acknowledged that he had received some notice at least two months prior to trial.

[00:23:02] Speaker 05:
And what the California Court of Appeal found is if this was the first time,

[00:23:09] Speaker 05:
that he received notice about it, it might be, there might be grounds for a continuance, but because he had this notice in the previous trial, combined with the prosecutor's representations in the second trial, that it would deny the continuance, because... And the record doesn't disclose one way or the other whether Dr. Krell notified defense counsel of the disqualification in Delvala or... I believe defense counsel said he had not heard of it from Dr. Krell.

[00:23:38] Speaker 05:
He said he had not heard of it from Dr. Krell, and then he explained to the court that the problem was that Petitioner was representing himself in the first trial, and even though defense counsel was standby counsel at the first trial, and that ended that case.

[00:24:04] Speaker 05:
2013, and the prosecutor said, I had no knowledge that motion was run.

[00:24:12] Speaker 05:
So I read that saying, he didn't say the prosecutor never advised me about the hearing.

[00:24:17] Speaker 05:
He said, I had no knowledge that notion was run because Petitioner was representing himself at the first trial, and this trial was declared.

[00:24:25] Speaker 05:
And then before the second trial, this

[00:24:42] Speaker 01:
about the continuance and that is even if a continuance, even if there might have been some notice or some degree of notice given the mechanical application of not allowing a continuance deprived Mr. Wright of his

[00:25:13] Speaker 05:
arbitrary or unreasoned decision.

[00:25:15] Speaker 05:
I mean, the holdings of Unger and Slappy apply here.

[00:25:20] Speaker 05:
The court heard statements from both the prosecution and the defense.

[00:25:25] Speaker 05:
The court considered – asked the prosecution, what was your notice?

[00:25:29] Speaker 05:
And it heard that the prosecutor gave notice several months

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The jury had already been in panel and granting another continuance for him to find an expert that would cause

[00:25:53] Speaker 05:
and there was no there were a lot of problems with dr. Kroll's testimony so it's unclear that he would be able to find another witness the testimony was regarding a ricochet and dr. Kroll used a trajectory rod through a screen door the prosecution's criminalist testified that a screen door wouldn't hold the trajectory rod in place that you need something thicker you need

[00:26:36] Speaker 05:
that the witnesses had testified to.

[00:26:38] Speaker 05:
So he based his conclusions on assumptions like that that were not necessarily based on any evidence in the case.

[00:26:46] Speaker 05:
And the jury undoubtedly would have heard this and they would have heard about him being disqualified from another case.

[00:26:59] Speaker 05:
defense, especially in light of the 911 call, and that he was acquitted of the attempted murder charge.

[00:27:05] Speaker 05:
And this is about the assault charge where all the prosecutor had to show was that he was firing in the direction of the victim, and regardless of whether he had intent to kill.

[00:27:16] Speaker 04:
To reach that same decision, do we need to credit the trial court's conclusion that the defense did have notice that the government was going to seek to discredit the expert?

[00:27:40] Speaker 05:
and the California Court of Appeal found that there was evidence in the record to support that, the prosecutor's statements, unless the court has

[00:28:06] Speaker 02:
I would like to start by discussing Kip, which was just brought up, and it is one of the cases that most strongly demonstrates that Wright has a clear path to habeas relief through 2254D2.

[00:28:20] Speaker 02:
In that case, the defendant Kip was tried for a rape murder, and at his trial, the prosecutor

[00:28:27] Speaker 02:
evidence of another rape murder that Kip was accused of committing but had not been convicted of.

[00:28:33] Speaker 02:
When the California Supreme Court affirmed Kip's conviction, the California Supreme Court said this was a totally fine thing for the prosecution to do because here are eight similarities between the two rape murders.

[00:28:46] Speaker 02:
So because there was this indicia of reliability, this evidence could come in.

[00:28:51] Speaker 02:
This court granted federal habeas relief to KIP through 2254-D2 for two reasons.

[00:28:58] Speaker 02:
First, it found that the California Supreme Court had made one misstatement of fact about the similarities between the rapes.

[00:29:05] Speaker 02:
Of eight, there was one misstatement of fact.

[00:29:08] Speaker 02:
And then this court continued, most importantly,

[00:29:14] Speaker 02:
rape murders, that they ignored, that were clearly in the record before the California Supreme Court.

[00:29:21] Speaker 02:
They cited Taylor and said that the fourth flavor that was discussed in Taylor, that the state Supreme Court did not consider and weigh the record evidence.

[00:29:31] Speaker 02:
That was most importantly why KIPP was granted federal habeas relief.

[00:29:36] Speaker 02:
That is exactly what happened here.

[00:29:37] Speaker 02:
Your Honor, again, it is not just about

[00:29:41] Speaker 02:
It is about the evidence that the California Court of Appeals ignored, including the extensive evidence about Dr. Krell's expertise and, to the point of notice in the continuance, the extraordinary number of times the prosecutor could have but never raised any qualms about Dr. Krell's qualifications.

[00:30:05] Speaker 02:
quarters referred to him as a ballistics expert when he was appointed as a ballistics expert, when in the first trial, the first trial court said he is a ballistics expert twice, that he recognized him from his testimony in the court, and that there were, quote, no issues with his qualifications.

[00:30:24] Speaker 02:
She did not contest his qualifications after Moody performed

[00:30:31] Speaker 02:
that's described him as a ballistics expert.

[00:30:36] Speaker 02:
In January, around the time that these voicemails were made, she did not object to two continuances that referred to him as a ballistics expert.

[00:30:44] Speaker 01:
One can be a ballistics expert without necessarily being an expert in ballistics trajectories, right?

[00:30:50] Speaker 01:
I mean, you can have an expertise in matching casings and other things, and I think there's something more specific here that needs to be addressed, and that's did he have expertise in

[00:31:08] Speaker 02:
these 15 to 25 times that he had been qualified as a ballistics expert the trial court asked him to clarify whether that included or I believe I should say defense counsel asked him to clarify whether that included bullet trajectories and ricochets and he said yes that was never contested by the prosecution at the time and the state does not contest that fact now and again it's not merely the fact of whether or not he was actually qualified the issue with the continuance

[00:31:39] Speaker 02:
for nearly two years that discussed bullet trajectories and ricochets, and at no point until the morning of trial, despite the sheer number of opportunities to do so, did they ever raise issues about his qualifications, not his reputation in the crime scene reconstruction community, his qualifications, and whether she would move to disqualify him.

[00:32:03] Speaker 02:
weeks before the trial during the Readiness Conference, when that would have been the appropriate time under any common sense understanding of what being ready means and also under any courts in America's rules of providing notice, she did not even move then to disqualify Dr. Krell.

[00:32:19] Speaker 02:
So again, it's not merely the fact that Hugh had expertise.

[00:32:23] Speaker 02:
It's a fact that she knew that's how he was representing himself and still said nothing for nearly two years.

[00:32:34] Speaker 02:
Yes, your honor.

[00:32:35] Speaker 02:
This is all I'll say to wrap it up.

[00:32:38] Speaker 02:
Mr Wright is in the courtroom today, having suffered an extraordinary loss to his personal life and professional life because of his incarceration based on a conviction that should have never been obtained.

[00:32:50] Speaker 02:
I hope your honors consider the extraordinary due process violation that occurred here and grant him federal habeas relief.