[00:00:00] Speaker 02:
Thank you very much.

[00:00:01] Speaker 02:
May it please the court, Charles Bonneau appearing on behalf of appellant Eduardo Oguin.

[00:00:08] Speaker 02:
I'd like to thank the court for scheduling this argument by Zoom, given my family issues.

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I'd like to reserve five minutes for rebuttal.

[00:00:25] Speaker 01:
Just keep an eye on the clock.

[00:00:27] Speaker 02:
Thank you.

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Your honor, there's no question in this case that there is federal constitutional error in the instance of counsel led to inadmissible, reversible error that the victim was credible.

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and that the chances of a false accusation in these circumstances are vanishingly small.

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That should not have come into evidence.

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The question is whether the error was prejudicial.

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Under the EDPA analysis, the petitioner must clear the bar of demonstrating that no reasonable jurist would agree with the state court's conclusion.

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To support its conclusion, the state court identified three factors, emotionality and consistency of the victim's testimony and the defendant's prior offenses.

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I think in this situation, the federal court is bound to examine

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each of those factors and only those factors.

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This is not a situation like where we review a jury verdict and we have no way to know what was relied upon.

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And it's not even like the Harrington versus Richter situation where the state court gives a one-line denial

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And then the federal court is empowered to insert reasons for why the state might have reached its conclusion.

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This is a situation where the federal court is very specifically tied to the reasoning that the state court used.

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And this was emphasized in a case that came out of this circuit, Shin versus Keir.

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141 Supreme Court 517 at 523, 524.

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That was a 2020 decision.

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So why wasn't the state court's analysis at least within the realm of reasonableness that survives review under EDPA?

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I mean, you have consistent testimony from the victim.

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She told a bunch of other people at around the same time.

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And what she described was fairly similar to the prior offenses that he had been convicted of.

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So looking at all of that, why isn't it reasonable to conclude that that's what the jury was relying on and the improper testimony from the expert didn't make a difference?

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Yes.

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There are a couple of problems with the supposed consistency analysis.

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She wasn't consistent.

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She came up with more information by visions and flashbacks.

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But she then told the counselor just a few days before her testimony.

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But there was testimony from, was it Dr. Love, I think?

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about delayed disclosure and how that's sometimes common in these kinds of cases.

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And that, I take it you don't dispute that that testimony was properly admitted, right?

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That's right.

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In fact, that's the problem with using consistency.

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Because if you're saying that consistency is a hallmark of reliability, but that, hey, sometimes you can be inconsistent, and that's OK too.

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It's hard to see where that leaves the jury.

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I think it's just a wash.

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There's consistent, inconsistent.

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She wasn't consistent.

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And these are facts that were omitted from the state court opinion.

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There's nothing in the state court opinion about visions and flashbacks, but yet she told the counselor and that was repeated in her testimony.

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And so those are inconsistencies.

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And they were not even mentioned in the state court decision.

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And that is something that the Supreme Court says that can be very important.

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There's a decision cited by respondent here, Mays versus Hines, 141, Supreme Court, 1145.

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in which the Supreme Court takes to task a circuit court which reached a conclusion but conveniently omitted, the Supreme Court's words, conveniently omitted relevant facts in the opinion.

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So that's something the Supreme Court thinks is important.

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And that's what happened here.

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very importantly, with the visions and flashbacks which show that she was not consistent.

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As far as her emotionality, the district attorney, well, we can't tell.

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There's no way to tell from the printed record when she was emotional or how much or whether she paused.

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Those are factors that

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that are impossible to evaluate, but the DA in characterizing her testimony said she was spacey and unresponsive sometimes.

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So again, you can't have it both ways.

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If she wasn't emotional sometimes, then

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How is the jury supposed to give her credit for being emotional when she apparently just was spaced out?

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Is that the only evidence that the state court relied upon to

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find that the error was not prejudicial.

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I read the state court's opinion as stating that the error wasn't prejudicial because even if the counsel had objected and the sort of improper vouching for the witness's credibility had been excluded, it didn't make a difference because of the strength of the evidence against the defendant and also because of the similarity to his prior offenses.

[00:07:25] Speaker 03:
So it seemed to be more than, am I correct on that?

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Well, that's, these are the things that the state court relied upon, which the federal court must take in, must look at carefully when federal constitutional rights are at stake.

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But we're not substituting our judgment for the state court.

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So if reasonable jurors could differ, then that means that under EDPA, the state court's judgment

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stands.

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We don't come in.

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No, I am asking this court to substitute its judgment for the state court.

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The state court was wrong, certainly wrong on the emotionality.

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But that's not what we do in habeas.

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We're not sitting as a court to correct error.

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It has to be extraordinary.

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It has to be something that no reasonable jurors could disagree that the state court was just wrong.

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This is a state court action.

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We're a federal court.

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We can't just

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go in and substitute our judgment.

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This isn't a direct appeal.

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granted all of that, but if the state court says something and this court looks back, well, wait a minute, where did that appear in the record or was there, is that really what the record says?

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The Supreme Court has been very definite about this issue and we've relied on Kip versus Davis, but also,

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I just cited, I think, Mays versus Hines, where the state court omission or the lower courts omission, convenient omission of facts that are in the record and just get left out of the opinion.

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That's an open door according to the Supreme Court.

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for this court to police that function and make sure there hasn't been a prejudicial denial of federal constitutional rights just because the state court is conveniently omitting

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facts from its own opinion.

[00:09:39] Speaker 03:
But it seems like the difficulty with your argument is that the state court did not just rely on the conclusion that the witness's testimony was consistent, which you're saying is based on omitting facts from the record.

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So there's also their conclusion that the offenses were very similar to his prior convictions,

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And ultimately, applying Strickland, which is the clearly established federal law, it didn't make a difference.

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It didn't change the result.

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Okay.

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So if we're done with the emotionality and the consistency,

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questions.

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Then we go to the defendant's prior record and how strong is that?

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How important?

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Would any reasonable jurist say that the defendant's prior record is enough to convict him where the people's case is based in large part on testimony that

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basically children never lie.

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And also a conclusion of another expert that she found the victim to be very credible.

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And so those are things that should not have come into evidence.

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The question is whether the state court made a reasonable conclusion based on United States Supreme Court authority

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that this was that he would have been convicted anyway that all it takes is her saying it and him being convicted in the past which she knew but you know you don't uh argue that the evidence of the prior convictions was improperly admitted i didn't see that on your brief okay so that evidence is in no state court could properly rely that's in that's in they can it's it's admissible but the state courts have been

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very careful to say that the older these offenses are, the less weighty, the less weight they have.

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These were very old offenses.

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The other thing that's lacking here is any

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really any connections okay if the state court says well you can consider it but what's the connection really has this guy had had an intervening uh arrest record has has he been into uh psychiatric counseling or has he been committed or is there something that is something strange that is is relevant to show that there's a connection usually these the prior uh the the the

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The older the offense is, the less important it is, the less weight it has.

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And that's a big problem here with saying that this is a real strong case based on his priors.

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There's other problems here.

[00:12:45] Speaker 01:
You would want him to reserve some time.

[00:12:48] Speaker 01:
You're down under three minutes.

[00:12:51] Speaker 02:
Oh, OK.

[00:12:51] Speaker 02:
That's not my 10 minute.

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OK.

[00:12:54] Speaker 02:
Yes, thank you.

[00:13:04] Speaker 00:
Good morning and may it please the court Deputy Attorney General Charity Whitney on behalf of the warden.

[00:13:19] Speaker 00:
The state court set forth a thorough analysis of petitioners ineffective assistance of counsel claim below going through the evidence in some cases line by line to determine that there was deficient performance, but simply no prejudice could have inured from the error.

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The district court reviewed that finding.

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It said explicitly that it reviewed the entire file concerning petitioners' allegations, and it found nothing objectively unreasonable about the state court's determination.

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And we would ask this court to uphold that ruling.

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And I'm here to answer the court's questions.

[00:13:56] Speaker 01:
Yeah, can you just clarify?

[00:13:57] Speaker 01:
I mean, I think this is apparent from your brief.

[00:13:59] Speaker 01:
But just to be clear, you don't take issue with the state court's determination that counsel performed efficiently in not objecting

[00:14:07] Speaker 00:
No, we're not arguing the deficient performance determination was incorrect.

[00:14:12] Speaker 01:
And so as sort of as a corollary to that, I take it you don't dispute that it was improper to present the not-objected-to testimony?

[00:14:22] Speaker 00:
So that testimony was certainly improper under state law.

[00:14:26] Speaker 01:
Right.

[00:14:27] Speaker 01:
And is it, I mean, I guess the prosecution, I take it, was the county district attorney's office?

[00:14:34] Speaker 00:
Yes.

[00:14:34] Speaker 01:
And then you're from the state AG.

[00:14:38] Speaker 01:
Is it a common practice to present testimony like this?

[00:14:42] Speaker 00:
So the child sexual abuse accommodation syndrome experts, from what I understand, are very common to come in these types of cases.

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But understanding that, of course, I don't review every single prosecution from this type of crime,

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I don't believe it is common for them to make those objective to statements that only 1% of children would ever make a false allegation that type of testimony does not regularly come in because because of this very reason the appellate courts are.

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eager to police that improper testimony.

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And so when it does come in, the prosecutors see this type of analysis coming out of the 3DCA and the 5DCA and the rest of the district courts of appeal.

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And so they tailor their questioning of these experts in order to prevent that type of improper testimony in the first place.

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And why wouldn't the testimony make a big difference?

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I mean, the whole question of the testimony from the victim

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And the question is, do you believe her or not?

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And there are reasons that you would, and perhaps some reasons that you wouldn't.

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But why wouldn't it be very powerful to a jury to have an expert who comes in and says, look, I'm an expert, and I'm telling you, testimony like this is always reliable.

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You should believe it.

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How would that not affect the outcome?

[00:16:09] Speaker 00:
So you can imagine a case in which that expert testimony and then the statements of the victim came in, and that was it.

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That was the vacuum in which the jury considered the credibility of the victim.

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And that would be a much stronger case for saying that that expert testimony would just weigh so heavily, it would be difficult to imagine it not being prejudicial.

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But that's not Petitioner's case.

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In Petitioner's case, the state court set forth sort of a three-legged stool for its explanation of why this wouldn't have been

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the most important thing that the jury would have considered.

[00:16:41] Speaker 00:
As Your Honors are well aware, that was relying on the witnesses' emotionality and the way that she discussed this crime, not just on the stand, there was certainly that, but also to the other six testifying witnesses who described her disclosure.

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There was the fact that across those six other disclosures,

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She was consistent about the primary facts of what happened.

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And there was also the fact that, completely independent of the words of what the victim said, was the fact that the petitioner had a propensity to commit these crimes.

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Over the course of 20 years, he had three separate convictions for sexually abusing minors between the ages of 11 and 16.

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In most of those situations, he was fixating on their breasts in the same way that he did with the victim in the incident case.

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And so maybe if you didn't have any of the rest of that, you would have a stronger case for saying that improper testimony was prejudicial.

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But here, you don't just have three other pieces of important testimony, or excuse me, three other pieces of important evidence.

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You have three whole categories of additional important evidence.

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And each of those categories has layers and layers of testimony and evidence that came in for the jury.

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And so what the experts said in passing

[00:18:00] Speaker 00:
in frankly a narrative answer to questions from defense counsel shouldn't be considered to be more weighty than that entire remainder of the evidence.

[00:18:15] Speaker 01:
The objected or the objectionable statements were elicited by.

[00:18:19] Speaker 00:
Yes, so the additional statements from the child sexual abuse accommodation syndrome expert came in on direct as well as on petitioners cross examination.

[00:18:31] Speaker 00:
And then because we were I guess this would have been a question for your friend on the other side But the the the record before us didn't appear to include the transcript of what the expert actually said No petitioner did not include in the excerpts those statements in the testimony either from the school counselor or the expert Unless there are any further questions were prepared to submit on the briefing Thank you very much.

[00:18:57] Speaker 01:
Thank you

[00:19:02] Speaker 01:
Mr. Bonneau.

[00:19:03] Speaker 02:
Thank you.

[00:19:05] Speaker 02:
Yeah, I'd like to say something about the bite marks because that's being relied upon.

[00:19:12] Speaker 02:
What wasn't mentioned in the court's opinion is that this young lady had spoken to her friend.

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She had a close friend that she was communicating with and

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that friend said that she had been molested by her own father.

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And what she described was that he would bite her on the chest.

[00:19:41] Speaker 02:
Now, that's not mentioned in the state court appeal, but that's certainly a suggestive scenario that the victim may have picked up upon.

[00:19:57] Speaker 02:
It's also possible that she knew a lot about Mr. Oldwin's prior offenses.

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because she had, well, I've enumerated this, but she had several ways in which she actually learned that he was on the sex offender list.

[00:20:17] Speaker 02:
So she knew that, and she may have known more details about him.

[00:20:22] Speaker 02:
It's very likely because her best friend's aunt was a new old one.

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as when they were in school.

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So that's just not extraordinary.

[00:20:36] Speaker 02:
I think that the Appalachian Council said that these offenses, his prior offenses occurred over the course of 20 years.

[00:20:50] Speaker 02:
That's not accurate.

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They were at least 20 years old.

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They were more than 20 years old, all of them.

[00:20:58] Speaker 02:
um there's there's some in some discussion of what we call csas

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testimony, it is very common in sex offense cases.

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And it's been, the use has been upheld, but it's very tightly cordoned off.

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And we have cited state court cases that are particularly alert to this use of statistical evidence, which will virtually bulletproof the victims

[00:21:34] Speaker 02:
claims, if you say that it is exceedingly rare for any child ever to lie about this, that is very strong, very damaging, very prejudicial evidence.

[00:21:49] Speaker 01:
Thank you, counsel.

[00:21:50] Speaker 01:
We thank both counsel for their arguments, and the case is submitted.