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

[00:00:00] Speaker 00:
May it please the court?

[00:00:01] Speaker 00:
I'm Mark Zilversmith.

[00:00:03] Speaker 00:
For Petitioner Daniel Cohen, I would like to reserve two minutes for a bottle.

[00:00:09] Speaker 00:
This case is an extreme malfunction in the state criminal justice system.

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It's also a case per Strickland where counsel's conduct undermined the proper functioning of the adversarial system such that it cannot be relied upon as having produced a just result.

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It's also a case of a malfunction in the district court.

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Here, the attorney general and the state courts agree that the record shows that Daniel Cohen and his mother suffered from delusions and delusionally believed that the neighbors below them had an imaginary

[00:00:51] Speaker 00:
methamphetamine lab.

[00:00:53] Speaker 02:
How is that relevant to the murder?

[00:00:58] Speaker 02:
I understand that they thought that they had this delusion about the meth labs, but the murder was of the landlord.

[00:01:09] Speaker 00:
Right.

[00:01:10] Speaker 02:
The problem, they were apparently being evicted, so what does the delusion about the meth labs have to do with it?

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Well, the state's theory of the case, the argument of the prosecutor at trial, who was familiar with the record, was that their delusions that were severe about this methamphetamine lab that did not exist

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being below them and that they believed was killing them was the cause of the murder, because they believed that Mr. Smith was not protecting them from the meth fumes, and they believed that Mr. Smith's eviction was going to kill Daniel's mother, Diana, and she was already very ill and she had a colostomy bag already.

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So it was directly related to the murder.

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This was all based upon this delusion that they were being poisoned by these non-existent methamphetamine labs and that they had to act to save Diana.

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And the state courts agree that they believe that Mr. Smith was responsible.

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And they agree that they delusionally believed that this methamphetamine and the eviction was going to kill Diana.

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They also agree that the trial counsel pursued what is described as an unsound legally flawed defense.

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So, and they have no answer for this court's decision in Daniels versus Woodford, where the court said prejudice is normally shown when counsel pursues a weak, or in this case, unsound, legally flawed, invalid defense.

[00:02:59] Speaker 01:
What do we need to do with

[00:03:01] Speaker 01:
You know, obviously we're under EDPA, which imposes some limitations in our review.

[00:03:10] Speaker 01:
What was put before the state court appears to be a set of records sort of unaccompanied by any

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declaration from an expert or from trial counsel, is that true?

[00:03:21] Speaker 01:
That is, no, I... Your declaration.

[00:03:24] Speaker 00:
I put my declaration there.

[00:03:26] Speaker 00:
So that's another breakdown in the state process under D2.

[00:03:31] Speaker 00:
Well, you're correct.

[00:03:32] Speaker 00:
Right.

[00:03:32] Speaker 01:
So the question, I guess, is, you know, on what basis would we say the state court was unreasonable given that what was in front of it... We don't have a reasoned decision.

[00:03:41] Speaker 01:
course by the state court so we're hypothesizing as to reasonable means by which you could have denied this but when all that's put in front of it is a sort of set of records

[00:03:51] Speaker 01:
Why would it have been unreasonable to deny it on that basis?

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Well, we're hypothesizing, and I haven't heard a sound hypothesis for a sound basis, for a reasonable basis for denying it, particularly because the state, there was evidence in the record that everybody agrees that my client's delusional.

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There's also evidence in the record that at least one social security examiner found him mentally disabled.

[00:04:22] Speaker 02:
And the second one didn't.

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The second one said he improved.

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But if you read, I put in some articles that explain the shared delusional.

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In the absence, the state court denied me expert funds.

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They denied me the ability to present an expert declaration.

[00:04:38] Speaker 01:
Did you have an entitlement to that?

[00:04:40] Speaker 01:
I mean, I understand that you wanted that, but was there a requirement that that be provided?

[00:04:45] Speaker 00:
Well, they're supposed to when you make a prima facie case of a need for an expert and a prima facie case for a need for an evidentiary.

[00:04:52] Speaker 01:
You say that as a matter of state law or is there some other source for this?

[00:04:55] Speaker 00:
Well, that's the way the state habeas law works.

[00:04:59] Speaker 00:
In Duval, the court said when you make a prima facie showing, you get an evidentiary hearing and you have the right to experts to make that showing.

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But we have a breakdown here where the trial counsel abandoned a mental health defense.

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We don't have any dispute that mental health defenses exist to negate malice and premeditation, and also that there's an insanity defense.

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And one of the articles that I provided the court was about a successful shared delusional disorder insanity defense.

[00:05:35] Speaker 02:
What does the shared nature of this?

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I mean, I'm asking because I don't understand it.

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You put a lot of emphasis on this folly adieu.

[00:05:44] Speaker 00:
Yes.

[00:05:45] Speaker 02:
What difference does it make if two of them had the delusion or one of them had the delusion?

[00:05:49] Speaker 00:
Well, the way that the shared delusional disorder, as I as a lawyer and not as an expert understand it, is that there's one dominant, it's called the impose,

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to impose a one dominant person, in this case the mother, who's bonkers, to use a non-technical term.

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And when you have a close relation, who's also predisposed to mental illness, they get caught up in this delusion and they follow along.

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So what Mr. Cohen is doing is he's following along with this mother's delusion saying, you gotta kill this man because it's gonna kill me if you don't.

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And that's how this negates malice, and that's how this is an invalid insanity defense, and that's how it denates premeditation, because he's caught up in his mother's delusion.

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She's dying, apparently, and they blame it on the Matthews, and they run the shower all night long.

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There's a lot of planning involved in delusional disorders like running the shower all the time is a planning method, but it's delusional planning.

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So this is all delusional planning based on a faulty perception of reality.

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So that's

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It would be better if we had an expert, and I asked the state courts to give me one, and Mr. Cohen-Proper asked for a hearing and an expert in counsel, and the district court denied it.

[00:07:20] Speaker 00:
I think it's another flaw.

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So in like Velasquez, which I submitted in the 28-J letter, what the court found the proper remedy was, was to remand it to the district court.

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Now in that case, there were fingerprints that

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that could have supported his theory, but they didn't have the expert, and the court remanded him.

[00:07:41] Speaker 01:
One thing Judge Tiger said on this point was that the Supreme Court hadn't clearly established a right to a mental health expert in the state collateral review proceedings.

[00:07:53] Speaker 01:
Do you contest that?

[00:07:54] Speaker 00:
Well, that's not one of my points on review, and you didn't give me a certificate on that, because that's ACA versus Oklahoma, which says you have the right at trial court.

[00:08:05] Speaker 00:
What I'm arguing is under D2, and I think, you know, I've read your opinions, Your Honors, and I've read your dissents from denials and bonbons, and I think, you know, you take this bar seriously, as do I.

[00:08:22] Speaker 00:
But I think in your dissent in Kipp versus Davis, which was written by Judge Akuta, and you both signed on to it, you recognize that there are situations under Taylor versus Maddox where there's a central issue, a material issue that the state court

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refuses to let be developed, and that's what happened in this case.

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I agree with you that there's a high bar, and I agree with you in comedy to the state courts, but there has to be some reasonable investigation.

[00:08:58] Speaker 02:
We have to be able to... So just technically speaking, you're arguing that this would be a D2 case.

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

[00:09:05] Speaker 02:
because of the, in large part, because of the inadequacy of the state court proceeding.

[00:09:11] Speaker 02:
Then we get to E2, and the recent Ramirez decision, which I must say baffles me.

[00:09:18] Speaker 02:
And so then the question becomes how, under Cullen versus Pinholster, are you still bound by the state court record, or could you get a federal hearing?

[00:09:33] Speaker 00:
You can get a hearing.

[00:09:35] Speaker 00:
The D2 and the E2 are closely related, the Supreme Court says, but they haven't defined them.

[00:09:46] Speaker 00:
There's no question that I was diligent in seeking a hearing.

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There's no question I was diligent in seeking an expert appointment.

[00:09:56] Speaker 00:
So when the state court actively frustrates defense counsel,

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and shuts out this.

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I mean, that exacerbates the inadequacy of the council.

[00:10:09] Speaker 00:
The council was not only inadequate, then he stopped cooperating with me as his duty was as appellate council.

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And then the state courts refused to let me show what he should have done in the first place.

[00:10:26] Speaker 00:
And I've done the best that I can by providing this court and that court with articles explaining the shared delusional disorder.

[00:10:36] Speaker 02:
Were you appointed counsel in the district court here?

[00:10:40] Speaker 00:
The judge refused to appoint counsel, Your Honor.

[00:10:43] Speaker 00:
and he refused to hold a hearing and he refused to order an expert.

[00:10:50] Speaker 00:
That's an irony of this case because I think if Judge Tiger had appointed a counsel and counsel had made this D2 argument clearly, which Judge Tiger did not even address in his order,

[00:11:04] Speaker 00:
I think there's a reasonable probability that Judge Tiger would have granted a hearing and it would have granted an expert and would have granted the petition, but because it was all done with the pro-per defendant, the articles were not made as clearly as a lawyer might have made, and Judge Tiger held no oral argument, of course.

[00:11:28] Speaker 00:
That's another irony.

[00:11:30] Speaker 00:
I think it's also a breakdown in the district court.

[00:11:33] Speaker 00:
I think one proper remedy is to do what the court did in Velazquez, which is to at least consider ordering an evidentiary hearing and appointment of counsel.

[00:11:47] Speaker 01:
I think we've let you go a little over your time.

[00:11:49] Speaker 00:
Oh, I appreciate your indulgence, Your Honor.

[00:11:51] Speaker 01:
Well, we will put two minutes on the clock for rebuttal, so we'll see you again shortly.

[00:11:56] Speaker 00:
Thank you, Your Honor.

[00:11:57] Speaker 01:
And we'll hear from your opposing counsel.

[00:11:58] Speaker 01:
Thank you.

[00:12:06] Speaker 03:
Good morning.

[00:12:06] Speaker 03:
Jill Thayer for the respondent.

[00:12:10] Speaker 03:
I'll start off with one of the questions about the delusion.

[00:12:15] Speaker 03:
And the delusion about the methamphetamine, whatever the delusions were, none of them had to do with a delusion that Mr. Smith posed an imminent threat to Mr. Cohen or his mother.

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And that's where this begins and ends.

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That wasn't what the delusion was.

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And so there's other cases that Mr. Cohen has cited about where the person has a delusion that this person is attacking them or attacking them with a weapon or something like that.

[00:12:51] Speaker 03:
But that's not here.

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And I know this court is familiar with the horrifying facts of premeditation in this case and planning, because Mr. Cohen and his mother were very capable of planning and premeditation and deliberation.

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And whatever their delusion was, it certainly didn't prevent them from a day-long activities in

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killing Mr. Smith.

[00:13:21] Speaker 03:
So I just want to point that out.

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Also, the lack of declarations here is fatal to his claim.

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And whatever the AG admits or doesn't admit, and I'm not saying I admit to anything that opposing counsel has said, but what really matters is whether the state court decision was objectively unreasonable.

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And it just wasn't here in the facts of this case.

[00:13:56] Speaker 02:
that's all this court has to look at, and then once it's not... Is there no set of facts that could have been developed that would have provided a mental health-related defense here?

[00:14:11] Speaker 02:
Essentially, I gather that there wasn't enough investigation in the trial court that this one doctor said he didn't think there was an insanity defense, but he needed

[00:14:25] Speaker 02:
the medical records and he didn't get them, right?

[00:14:29] Speaker 03:
Well, it sounds like, although it's very difficult to tell from these declarations, and they're all hearsay, but that they decided, and Dr. Dondershine was a very experienced psychiatrist, and so after the conversation, supposedly, they decided

[00:14:54] Speaker 03:
that not to pursue an insanity defense and really insanity was the way to go here but there wasn't an insanity defense here.

[00:15:06] Speaker 02:
You're saying they couldn't negate premeditation because there was all kinds of evidence of premeditation.

[00:15:12] Speaker 03:
So much evidence of premeditation.

[00:15:17] Speaker 02:
So if in fact

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Mr. Cohn believed that the victim was kind of a...

[00:15:35] Speaker 02:
I guess there was no evidence of this, but a demon or something who was causing his mother's death, but not right away.

[00:15:46] Speaker 02:
There would be no defense under California law to malice or premeditation or anything.

[00:15:54] Speaker 03:
That might be an insanity defense.

[00:15:57] Speaker 03:
I've seen people try and argue that and sometimes it works and sometimes it doesn't.

[00:16:04] Speaker 03:
But again, that would be insanity.

[00:16:07] Speaker 03:
That would be the person thought they were killing a demon.

[00:16:11] Speaker 03:
But that's not what happened here, obviously.

[00:16:16] Speaker 03:
I have a hard time imagining with this set of facts

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anything that would get rid of the evidence of planning premeditated and obviously intent to kill too.

[00:16:33] Speaker 03:
I mean he shot him four times twice in the head, once in the chest.

[00:16:37] Speaker 01:
Isn't Cohen's theory that all of this, what he would like to try to argue is that all of this was under this cloud of delusion?

[00:16:44] Speaker 01:
Is that inconsistent with what you're saying here?

[00:16:50] Speaker 01:
I mean that all of this could have happened under this shared

[00:16:55] Speaker 01:
psychosis that he had with his mother.

[00:17:00] Speaker 03:
I don't understand how that could possibly be a defense based on lack of the mental required mental state here.

[00:17:16] Speaker 02:
You're saying even if that's all true there's no defense.

[00:17:20] Speaker 03:
Insanity.

[00:17:21] Speaker 03:
The defense to pursue here would be

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insanity.

[00:17:27] Speaker 03:
And Mr. Page did pursue that, and he asked Dr. Dondershine to look at that.

[00:17:33] Speaker 03:
And they decided that no.

[00:17:36] Speaker 01:
And of course there was a lot of... And no because the evidence of premeditation intent to kill belied the theory that he was acting under some compulsion at the time.

[00:17:46] Speaker 01:
Is that what you're saying?

[00:17:47] Speaker 03:
Well, clearly he knew right from wrong because they were hiding all their... They went through all this machinations to borrow a car and hide the weapon and so forth.

[00:17:59] Speaker 03:
So obviously they knew they should not be killing this person.

[00:18:03] Speaker 03:
So a jury's not going to believe insanity.

[00:18:07] Speaker 03:
Insanity is, these people were not mentally healthy.

[00:18:13] Speaker 03:
Yes.

[00:18:14] Speaker 03:
But insanity is very difficult to prove, legal insanity.

[00:18:18] Speaker 03:
And they just didn't have that.

[00:18:20] Speaker 01:
And this evidence would not be relevant to some other type of defense?

[00:18:26] Speaker 03:
I'm sorry.

[00:18:28] Speaker 01:
Not insanity, but some other form of defense that's available.

[00:18:33] Speaker 03:
I think Mr. Page was very reasonable to say that a jury is not going to buy this evidence, and it doesn't show on the facts of this case a lack of intent to kill or a lack of premeditation and deliberation.

[00:18:49] Speaker 03:
There are so many examples in the records of all these cases of showing

[00:18:54] Speaker 03:
you know, unreasonable self-defense or whatever.

[00:18:57] Speaker 03:
But that's not what happened here.

[00:19:00] Speaker 03:
Mr. Smith was sitting in his office by himself.

[00:19:04] Speaker 03:
He was a sitting duck.

[00:19:07] Speaker 03:
He did not pose an imminent threat.

[00:19:12] Speaker 02:
Did all the delusional history come out of trial?

[00:19:18] Speaker 02:
I assume it did.

[00:19:22] Speaker 03:
there was evidence of the neighbors testified and and so forth yes in support of the imperfect self-defense

[00:19:30] Speaker 01:
theory or in support of what theory?

[00:19:32] Speaker 03:
Well, a lot of it was to show the motive.

[00:19:36] Speaker 03:
Like, why did they do this?

[00:19:38] Speaker 03:
And it looked like it was to show how they came to find that it was indeed Mr. Cohen and the mother.

[00:19:49] Speaker 03:
Like, it came to suspicion.

[00:19:50] Speaker 02:
It was government evidence, right?

[00:19:51] Speaker 02:
It was prosecutorial.

[00:19:53] Speaker 02:
The evidence was from the prosecution.

[00:19:55] Speaker 03:
Right.

[00:19:58] Speaker 03:
You know, the sad series of events that led up to this.

[00:20:02] Speaker 02:
Just because I'm curious, what's happened to the mother?

[00:20:06] Speaker 03:
I don't know.

[00:20:07] Speaker 03:
And I looked it up, well, I didn't look it up recently.

[00:20:11] Speaker 03:
I did not see anything about habeas petition, at least a federal habeas petition.

[00:20:16] Speaker 03:
So I don't know.

[00:20:18] Speaker 03:
I didn't look it up just before this argument.

[00:20:26] Speaker 01:
Let me see if my colleagues have further questions for you.

[00:20:28] Speaker 02:
I don't.

[00:20:30] Speaker 02:
I mean, it's a troubling situation.

[00:20:32] Speaker 02:
Well, I do have one.

[00:20:33] Speaker 02:
The district court held that there was ineffective assistance.

[00:20:40] Speaker 02:
And you spent a lot of your brief arguing with that.

[00:20:43] Speaker 02:
Is there any reason we should get to that question?

[00:20:47] Speaker 03:
Well, I think just for Mr. Page's sake, I think he performed competently.

[00:20:56] Speaker 03:
Certainly under Strickland, this court could go straight to prejudice and say no prejudice, because it's so overwhelmingly obvious that there's no prejudice here.

[00:21:09] Speaker 03:
I think Mr. Page, and also he could have reasonably seen, he knew the evidence too.

[00:21:15] Speaker 02:
And essentially there's no prejudice because there's no viable theory.

[00:21:18] Speaker 03:
There's no viable theory.

[00:21:19] Speaker 02:
Which this wouldn't matter.

[00:21:21] Speaker 03:
And what's, of course, very tricky about these prejudices is certainly Mr. Page could have also realized there's no viable theory here, and that's why he didn't go into the, and I don't know how to pronounce it, but the, whatever, the fully.

[00:21:35] Speaker 03:
Only I do.

[00:21:36] Speaker 03:
Yeah.

[00:21:38] Speaker 03:
That.

[00:21:40] Speaker 03:
And he could have thought, no jury's going to buy this, and so on and so forth.

[00:21:44] Speaker 01:
All the things I put on my screen.

[00:21:46] Speaker 01:
What was the nature of Mr. Page's defense then at trial?

[00:21:49] Speaker 03:
And I did expect he did the best he could with what he could.

[00:21:53] Speaker 03:
I mean, I think he did try and glean some sympathy and explain this weird relationship that Mr. Cohen had with his mother.

[00:22:02] Speaker 03:
And sometimes that's the best you can do.

[00:22:07] Speaker 03:
The facts were horrible.

[00:22:08] Speaker 03:
He walked into his office with these facts, and he did what he could with what he had.

[00:22:14] Speaker 01:
OK.

[00:22:14] Speaker 03:
Thank you very much.

[00:22:15] Speaker 03:
Thank you.

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

[00:22:24] Speaker 00:
Well, I disagree, of course.

[00:22:26] Speaker 00:
So in McShane, which I cited in my reply brief, this court talks about what you can do with mental illness to negate malice and premeditation.

[00:22:39] Speaker 00:
And you also talk about this in Daniels, which is a much older case.

[00:22:43] Speaker 02:
But also- It would be helpful to me if you were very specific about what the defense could have been.

[00:22:50] Speaker 00:
The defense could have been based on a shared delusional disorder.

[00:22:56] Speaker 00:
Mr. Cohen's mental state was fused with his mother's and therefore he did not actually premeditate and he did not actually form the mental state of malice.

[00:23:11] Speaker 00:
And that is a valid defense and also that he understood misunderstood imminence.

[00:23:19] Speaker 02:
So this is interesting.

[00:23:19] Speaker 02:
So the hallucinations don't actually matter.

[00:23:23] Speaker 02:
What matters is that he would just do whatever his mother said.

[00:23:27] Speaker 00:
Well that's, no, I don't think, well, partly and partly no.

[00:23:32] Speaker 00:
I think the delusions matter because they show how much control Mrs. Cohen exerted over Mr. Cohen because they show,

[00:23:43] Speaker 00:
When the neighbor testified, and this was all introduced by the prosecutor to show the motive, the neighbor testified, I don't make methamphetamine.

[00:23:52] Speaker 00:
I invited him into my house to show him that there's no meth lab down there, and the mother kept telling him, look in the cupboards.

[00:24:01] Speaker 00:
look in the sink, look down in the shower.

[00:24:06] Speaker 00:
And he said, look in the stove.

[00:24:08] Speaker 00:
Every time he came out of that apartment and said, it's not there, Mom, it's not there, she kept telling him to look other places.

[00:24:15] Speaker 00:
And then when she said,

[00:24:18] Speaker 00:
I've looked everywhere, Mom, and it's not there.

[00:24:22] Speaker 00:
And she says, well, she's got a kid.

[00:24:24] Speaker 00:
And her kid and her friends go in and out of that place with backpacks.

[00:24:28] Speaker 00:
So they're taking the methamphetamine equipment in and out of the house with backpacks.

[00:24:33] Speaker 00:
And he's still believing her ridiculous delusional worldview.

[00:24:39] Speaker 00:
So he's very much under her thumb.

[00:24:42] Speaker 00:
And the prosecutor said that.

[00:24:44] Speaker 00:
And so that's part of it.

[00:24:47] Speaker 00:
And if you look at the Humphreys case in California, that's a battered woman syndrome.

[00:24:51] Speaker 00:
And battered women are very sympathetic and they have the right to use force against their abusers.

[00:24:58] Speaker 00:
But if a battered woman in the Humphrey case killed her batterer in bed under the belief that

[00:25:08] Speaker 00:
He was going to wake up any minute and kill her.

[00:25:11] Speaker 00:
That's a valid defense in California, even though the man is sleeping.

[00:25:17] Speaker 00:
He's not an imminent threat under, you know,

[00:25:22] Speaker 00:
If we saw him in this courtroom, we would say he's not an imminent threat.

[00:25:26] Speaker 00:
But she's been battered so much that her mental state, and that's what CALCRM 342.

[00:25:31] Speaker 01:
I want you to go a little bit over, Mr. Zilversman.

[00:25:34] Speaker 01:
Let me see if my colleagues have other questions for you.

[00:25:37] Speaker 02:
Again, because I'm curious, do you know what happened to the mother?

[00:25:39] Speaker 02:
Excuse me?

[00:25:40] Speaker 02:
Because I'm curious, do you know what happened to the mother?

[00:25:43] Speaker 00:
The mother is in prison.

[00:25:46] Speaker 00:
Why, I'm sorry?

[00:25:47] Speaker 00:
Well, they both got life without parole and last time I checked she was alive My client separated from his mother is now doing much better, but he has no chance of parole under the court's rulings and

[00:26:02] Speaker 00:
As far as I can tell, his attorneys did not pursue the defenses that I did, which is too bad.

[00:26:11] Speaker 00:
But I can't be everybody's lawyer.

[00:26:13] Speaker 01:
OK.

[00:26:14] Speaker 01:
Well, thank you very much for your presentation this morning.

[00:26:17] Speaker 00:
I appreciate the court's time.

[00:26:19] Speaker 01:
Thank you.

[00:26:19] Speaker 01:
We thank both you and Ms.

[00:26:21] Speaker 01:
Thayer for the presentations.

[00:26:22] Speaker 01:
This matter is submitted.

[00:26:25] Speaker 00:
Thank you, Your Honor.