[00:00:07] Speaker 00:
Good morning, and may it please the court.

[00:00:10] Speaker 00:
My name is Maggie Lambros, appearing on behalf of Appellant Manuel Melendez, and I would like to reserve two minutes for rebuttal.

[00:00:19] Speaker 00:
I will watch my clock.

[00:00:22] Speaker 00:
It is well settled that leave to amend should be granted freely when justice so requires, and that public policy favors allowing amendments.

[00:00:32] Speaker 00:
In a matter as serious as the one here, where there is substantial evidence of actual innocence, justice requires that Mr. Melendez be given the opportunity to have his constitutional claims considered on their merits.

[00:00:48] Speaker 04:
With due respect, counsel, I take your point, but SHLEP is a very difficult standard to meet here.

[00:00:55] Speaker 04:
You've got to show that basically no juror could possibly have come to the same result

[00:01:01] Speaker 04:
And yet what you have presented here is basically a bunch of impeachment evidence, much of which was already considered by the jury, plus the recantation of what was then a very young girl, probably couldn't remember anything at the time, but there were contemporaneous comments that were made.

[00:01:17] Speaker 04:
How do you meet the SLUF standard under these circumstances?

[00:01:21] Speaker 00:
Thank you, your honor.

[00:01:22] Speaker 00:
So I'll take that question in three parts.

[00:01:25] Speaker 00:
OK.

[00:01:25] Speaker 00:
First, under House BV Bell, the court held consistently with Schlepp that the standard, although very hard and difficult to meet, it is a more likely than not standard.

[00:01:40] Speaker 00:
It is a probabilistic standard.

[00:01:43] Speaker 00:
And when we consider whether the entire record as a whole

[00:01:49] Speaker 00:
would have been considered with all of the new evidence, then it is more likely than not that a reasonable jury would have found that Mr. Melendez was not guilty.

[00:02:06] Speaker 00:
And what happened in this case is that the district court unfortunately failed to consider the new evidence

[00:02:16] Speaker 00:
in light of the fact that Mr. Melendez provided multiple statements from witnesses who said that Mr. Melendez had made false allegations against other family members.

[00:02:33] Speaker 04:
With respect, before the jury, they did all kinds of things to try to impeach her integrity.

[00:02:40] Speaker 04:
They basically said, she's a creep.

[00:02:42] Speaker 04:
You can't believe anything she says.

[00:02:44] Speaker 04:
And he's saying, boy, she really was.

[00:02:46] Speaker 04:
How does that meet schlump?

[00:02:48] Speaker 00:
Well, Your Honor, two points.

[00:02:50] Speaker 00:
Impeachment evidence can by itself be sufficient to demonstrate actual innocence.

[00:02:57] Speaker 00:
Under Keriger, this court's precedent, the court held impeachment evidence by itself can demonstrate actual innocence, where it gives rise to sufficient doubt about the validity of the conviction.

[00:03:11] Speaker 02:
Counsel, if I may sort of latch on to Judge Smith's question,

[00:03:17] Speaker 02:
I mean something, I know we're looking at this de novo, but something that particularly struck me about one thing the district court said, which I think goes with Judge Smith's question.

[00:03:28] Speaker 02:
The district court said at page 14 of the order, this trial poiled down to credibility, but it was not just Margarita's credibility.

[00:03:38] Speaker 02:
The trial also hinged on Melinda's credibility.

[00:03:42] Speaker 02:
given that he took the stand in his own defense.

[00:03:44] Speaker 02:
So the jury heard your client.

[00:03:47] Speaker 02:
This is not what we normally see in these cases.

[00:03:50] Speaker 02:
They heard your client and they didn't believe him.

[00:03:53] Speaker 02:
And it's hard for me to see how with the additional evidence you're adding, no juror could find him guilty.

[00:04:03] Speaker 00:
Well, Your Honor, the lower court, when conducting that analysis, failed to consider the fact

[00:04:11] Speaker 00:
that all of the information, both old and new, would have discounted the statements and the testimony of Margarita to the point where it would have changed the outcome of the trial because of the fact that when the lower court found that the hearsay statements were not statements that she was going to consider because they didn't carry weight.

[00:04:38] Speaker 00:
the court was required to consider all evidence admissible and inadmissible.

[00:04:43] Speaker 03:
Part of the evidence, Schlup basically says you look at everything and the rules of evidence go out the window.

[00:04:49] Speaker 03:
And one of the things that would now be considered under Schlup are the statements of his lawyer who related a statement from the investigator that gave him sufficient pause to worry about challenging one of the

[00:05:08] Speaker 03:
particular incidents.

[00:05:10] Speaker 03:
And that is something now that has to be taken into account in the schlup standard.

[00:05:17] Speaker 03:
So why isn't that statement

[00:05:19] Speaker 03:
admittedly, that would never come in as evidence, but it's considered for sure that the investigator said that he gave an explanation that seemed to sort of try and explain the incident, you know, with the candy bowl in front of the TV, that he seemed to have come up with an explanation of why his face was where it was.

[00:05:41] Speaker 03:
That kind of statement compared, you know, in the context of all the other things that my colleagues have mentioned, why

[00:05:48] Speaker 03:
couldn't that be enough for a reasonable trier to say he's not actually innocent?

[00:05:53] Speaker 00:
Well Your Honor, that statement was ambiguous.

[00:05:58] Speaker 00:
That statement was

[00:06:00] Speaker 00:
Essentially, if my memory is correct, and I'm going off of memory, that Mr. Melendez said that there was a time where she had AC was wearing her clothes, but maybe her underwear was not on.

[00:06:16] Speaker 02:
You know, counsel, with all due respect, I'm looking at, I believe, what Judge Collins was talking about at ER 1184.

[00:06:23] Speaker 02:
Margarita came out, saw the girl on all fours watching television and being stark naked.

[00:06:30] Speaker 02:
In front of her and he had his face in her lower region that was one of the accusations and my understanding from my investigator was no she was wearing a dress no underwear And he was near the area so with all due respect counsel that does not strike me as particularly ambiguous as to a fact that would cast significant doubt on your clients in an actual innocence and

[00:07:00] Speaker 00:
Thank you, Your Honor.

[00:07:01] Speaker 00:
And what I meant was that the statement is not consistent at all with the testimony at trial.

[00:07:06] Speaker 00:
The testimony at trial was much more graphic.

[00:07:08] Speaker 04:
With respect, you're a good lawyer.

[00:07:10] Speaker 04:
I know you're trying to do the best you can for your client.

[00:07:12] Speaker 04:
But the standard we have here is whether a reasonable juror could still convict, even considering all of the newly presented evidence, much of which is not new.

[00:07:22] Speaker 04:
It's all just basically impeachment evidence.

[00:07:24] Speaker 04:
And I'm struggling with how that could possibly be met in this case with things like my colleague just mentioned.

[00:07:30] Speaker 04:
Things like what the lawyer said.

[00:07:32] Speaker 04:
They're just all kinds of evidence, plus Mr. Belendis' own testimony, as was brought up, that the jury looked at and they convicted him.

[00:07:42] Speaker 04:
Slup usually works if you got a DNA thing, for example.

[00:07:45] Speaker 04:
Somebody convicted of rape and it turns out the sperm is from somebody else and you can prove that.

[00:07:51] Speaker 04:
That's different.

[00:07:52] Speaker 04:
You don't have that here.

[00:07:53] Speaker 04:
Basically, what you're doing is trying to retry the case

[00:07:57] Speaker 04:
that the jury held have heard and much of the evidence is just impeachment evidence that kind of grinds the same old story.

[00:08:06] Speaker 04:
How do you meet that standard?

[00:08:08] Speaker 00:
Because, Your Honor, what this case boiled down to at trial was testimony of Margarita, who was the only witness who testified that she saw the abuse occur.

[00:08:20] Speaker 00:
She was the only witness who could corroborate the testimony of a then three-year-old child.

[00:08:26] Speaker 04:
But again, her credibility was attacked repeatedly at the trial.

[00:08:33] Speaker 04:
This just adds more to it, does it not?

[00:08:35] Speaker 00:
It does not, Your Honor, because

[00:08:37] Speaker 00:
This evidence is not merely impeaching evidence.

[00:08:41] Speaker 00:
Margarita's testimony was the linchpin of the state's case.

[00:08:50] Speaker 00:
The lower court even acknowledged that AC's testimony alone would not have been sufficient to convict Mr. Lewandowski.

[00:08:59] Speaker 00:
Ms.

[00:08:59] Speaker 04:
Tessy, do you want to save any of your time?

[00:09:00] Speaker 04:
It's entirely up to you, but you're less than a minute and 20 seconds now.

[00:09:03] Speaker 00:
Yes, Your Honor.

[00:09:04] Speaker 00:
I would like to reserve my time.

[00:09:06] Speaker 04:
Very well.

[00:09:06] Speaker 00:
Thank you.

[00:09:07] Speaker 04:
Okay, let's hear from the government.

[00:09:11] Speaker 04:
Mr. Woodrum, please.

[00:09:17] Speaker 01:
Morning may please the court, Adam Woodrum, for the respondents.

[00:09:21] Speaker 01:
Mr. Melendez, as the court's already observed multiple times, faces a very difficult standard.

[00:09:27] Speaker 01:
And this very difficult standard, when it is met, has been met in the past, involves what's been called dramatic new evidence.

[00:09:35] Speaker 01:
And Mr. Melendez is not presenting any dramatic new evidence here.

[00:09:38] Speaker 01:
Mr. Melendez is piling on to Margarita largely.

[00:09:43] Speaker 01:
She was, again, as the court's observed,

[00:09:46] Speaker 04:
you speak up just a little bit for some reason, I care.

[00:09:49] Speaker 04:
Yeah.

[00:09:50] Speaker 01:
Certainly.

[00:09:51] Speaker 01:
Thank you.

[00:09:52] Speaker 01:
I'll sink down a little bit.

[00:09:54] Speaker 01:
We want to be sure your TV audience can hear you well for for whatever

[00:10:02] Speaker 01:
Margarita was impeached thoroughly as the court's observed.

[00:10:06] Speaker 02:
Council, I don't have a firm recollection of this, so feel free to correct me if I'm wrong on this, but was this a case where the jury sent back several notes indicating they were having some difficulty here?

[00:10:23] Speaker 01:
I will confess that I do not recall that.

[00:10:25] Speaker 02:
Okay, so I might be thinking of a different case.

[00:10:28] Speaker 02:
Why don't you just move along?

[00:10:30] Speaker 02:
Certainly.

[00:10:31] Speaker 02:
If I am, I apologize.

[00:10:32] Speaker 03:
I recall one of the notes related to the timeline.

[00:10:35] Speaker 03:
They were struggling with the timeline, and the timeline in light of the new evidence is mess.

[00:10:42] Speaker 01:
The timeline is a mess.

[00:10:44] Speaker 01:
And I believe that the district court struggled with that as well.

[00:10:48] Speaker 01:
The court below struggled with that as well, and ultimately concluded that it did not have to have happened in November.

[00:10:54] Speaker 01:
And what I will say is that Margarita, every time she testified, the dates were a mess.

[00:10:59] Speaker 01:
Every time she testified, she said, in no uncertain terms, she didn't know exactly when it happened, but that she was sure.

[00:11:07] Speaker 03:
But she did seem to say that it was after the hospital stay.

[00:11:12] Speaker 03:
And the problem is that there doesn't seem now in light of the record, as we now understand it, to be a time after the hospital stay where they were living together at that particular house.

[00:11:24] Speaker 01:
Well, Your Honor, I think that two parts.

[00:11:26] Speaker 01:
First of all,

[00:11:28] Speaker 01:
She came back from the hospital the time we know about.

[00:11:31] Speaker 01:
My understanding is also that she was diabetic.

[00:11:33] Speaker 01:
She may have been there at one additional time.

[00:11:36] Speaker 01:
The time I think we know about for certain was sort of the 20th or so of September through the 1st of October.

[00:11:43] Speaker 01:
The district court said it could have happened during the month of October.

[00:11:49] Speaker 01:
It raises a second interesting point.

[00:11:52] Speaker 01:
Mr. Melendez's testimony is completely irreconcilable with the idea that he was anywhere near the house in October.

[00:12:05] Speaker 02:
They were still hanging out together and going out and going to dinner and things like that, which would suggest that even after evicted, he could have been in the house.

[00:12:15] Speaker 01:
Yes, Your Honor, and I believe they met not only in California when he traveled there to work between November and December, but also when he came back, they were seen together one additional time.

[00:12:26] Speaker 01:
So it was definitely an on-again-off-again relationship, and Mr. Melendez's testimony is that from August to November, he had no contact with Margarita or the child, which is a completely irreconcilable account of what happened.

[00:12:40] Speaker 01:
But what we know, again, as the court points out, is it was kind of an on-again-off-again relationship.

[00:12:47] Speaker 04:
It seems to me what we've got here, of course, human recollection is not very good, and eyewitnesses are the worst, usually.

[00:12:58] Speaker 04:
But what you've got is a lot of contradictions, but the jury heard Melendez, heard Margarita, heard all these people, and looked at them, looked at their body language, weighed their testimony, and made a decision.

[00:13:11] Speaker 04:
Are all of the aspects, do they all weigh correctly?

[00:13:15] Speaker 04:
No, but none ever do.

[00:13:17] Speaker 04:
But here the burden is on Mr. Melendez in this case to show basically that underslept, there's no way that he possibly committed this.

[00:13:28] Speaker 04:
And I'm struggling to see how that can happen.

[00:13:31] Speaker 01:
Well, and I can do nothing but agree 100%, Your Honor.

[00:13:36] Speaker 01:
You're absolutely correct.

[00:13:37] Speaker 01:
There is no way that the jury hears both versions of the story of the timeline.

[00:13:44] Speaker 01:
The only way they could have found Mr. Melendez guilty is to have believed Margarita's version and disregarded Mr. Melendez's version.

[00:13:54] Speaker 01:
They were irreconcilable.

[00:13:55] Speaker 03:
The other thing I wanted to- Out standard of review is I understand it under Schlup is de novo, right?

[00:14:02] Speaker 03:
Yes, Your Honor.

[00:14:03] Speaker 03:
So we just assess whether or not in light of all of this stuff, including all the non-admissible stuff, he's shown by a preponderance that no reasonable jury would convict in light of everything we know now.

[00:14:21] Speaker 01:
Yes, Your Honor, that's correct.

[00:14:23] Speaker 01:
It is a de novo standard, despite being a, you know, we're here on sort of an interesting procedural posture of it being a denial of emotional men.

[00:14:31] Speaker 03:
Because, you know, the victim was three years old at the time.

[00:14:35] Speaker 03:
Her testimony, even back then, was pretty much a mess.

[00:14:42] Speaker 03:
She didn't really say much that was incriminating at certain phases.

[00:14:49] Speaker 03:
It really came down to Margarita and then the rehabilitation with some statements from the aunt.

[00:14:58] Speaker 03:
The victim says that she doesn't believe anything that happened.

[00:15:05] Speaker 03:
Margarita looks a lot less credible than she did then.

[00:15:13] Speaker 03:
The timeline has sort of been disproved, even the district court sort of acknowledged the timeline clearly didn't happen as Margarita claimed it did.

[00:15:22] Speaker 03:
Why isn't this a situation where it's just built in reasonable doubt that it's not the Jackson standard of could a jury, but would a jury now not have a reasonable doubt?

[00:15:36] Speaker 01:
Well, Your Honor, considering a holistic view of all the evidence, first of all, the time of the offense is not an element of the crime in Nevada.

[00:15:47] Speaker 01:
I think that's important to point out.

[00:15:49] Speaker 03:
But it's really significant to her credibility.

[00:15:52] Speaker 03:
And the fact that we all have to engage in the speculation as to how the claim that she made, which we know to be untrue as it was framed, could

[00:16:05] Speaker 03:
be misunderstood or re-characterized in some confused way to fit the facts?

[00:16:12] Speaker 01:
Well, it has always her version of events from the initial police investigation.

[00:16:17] Speaker 01:
She says she thinks it's in November or December.

[00:16:19] Speaker 01:
So you're right.

[00:16:21] Speaker 01:
The weight of the evidence is that it probably did not happen in November or December.

[00:16:26] Speaker 04:
Can I just follow up on that?

[00:16:28] Speaker 04:
My colleague used a slightly different, if I will, standard.

[00:16:34] Speaker 04:
My understanding is we have to determine whether a reasonable juror could still convict, not whether they would convict.

[00:16:42] Speaker 04:
Is that correct?

[00:16:43] Speaker 01:
I believe that's the Schlupb standard.

[00:16:45] Speaker 01:
That's what?

[00:16:46] Speaker 01:
I believe that is the standard.

[00:16:47] Speaker 03:
No.

[00:16:47] Speaker 03:
House makes very clear that there are two differences between Jackson and Schlupb, and one of them is you consider everything, and the other is it's would and not could.

[00:17:01] Speaker 04:
Well, we can talk about that.

[00:17:04] Speaker 01:
Okay, yeah, I'll have to defer I've lost track somewhat of the question that was that was asked but the Nevada some court I wanted to point out the Nevada some court found that her testimony margarita's testimony was only crucial to three of the counts anyway and

[00:17:19] Speaker 01:
Now, I understand that Mr. Melendez argues that she was the linchpin, that she got the whole thing rolling, and that she was the only one that made any direct observations.

[00:17:29] Speaker 01:
Regardless, by the time it got to trial, the Madison court said that three of the counts were based solely on her testimony.

[00:17:36] Speaker 01:
Two of them were not.

[00:17:37] Speaker 01:
One of them was based on the Anst testimony.

[00:17:40] Speaker 01:
One of them was based on AC's testimony herself.

[00:17:42] Speaker 01:
Mr. Melendez states at some point in his brief that AC's testimony was never consistent with abuse, and I have to disagree.

[00:17:53] Speaker 01:
She, from the get-go, testified that Mr. Melendez touched her butt.

[00:17:57] Speaker 01:
She demonstrated, apparently, how he spread her cheeks.

[00:18:02] Speaker 01:
And then she said that he touched her vagina over her clothes, so this was not a bathing situation, with an open palm running back and forth.

[00:18:11] Speaker 01:
So I think that AC's testimony has always been consistent with abuse.

[00:18:16] Speaker 01:
And you don't get to anything that could be considered a recantation until you've got a nine-year-old testifying.

[00:18:23] Speaker 01:
And even then, she tells her mother, well, Mom, I was three.

[00:18:26] Speaker 01:
I don't remember if abuse happened or not.

[00:18:28] Speaker 01:
So that was ambiguous recantation.

[00:18:30] Speaker 03:
I want to go back.

[00:18:31] Speaker 03:
It's actually Schlup itself and not House on page 330 of

[00:18:38] Speaker 03:
it says the Jackson standard differs in at least two important ways from the Carrier standard that's becoming the actual innocence.

[00:18:46] Speaker 03:
Second, and more fundamentally, the focus of the inquiry is different under Jackson than under Carrier.

[00:18:51] Speaker 03:
Under Jackson, the use of the word could focuses the inquiry on the power of the tri-factor reaches conclusion.

[00:18:57] Speaker 03:
Under Carrier, the use of the word would focuses the inquiry on the likely behavior of the tri-factor.

[00:19:02] Speaker 03:
So I think your statement earlier was incorrect.

[00:19:06] Speaker 01:
Your point is well taken your honor.

[00:19:07] Speaker 01:
I appreciate that There's no other questions.

[00:19:10] Speaker 01:
I'll yield Thank you.

[00:19:12] Speaker 04:
Thank you very much.

[00:19:13] Speaker 00:
We have a little rebuttal time Thank you, I would like to just touch upon two of the issues that my Opponent raised first is the timeline and the jury questions it is true that timing is not an element of the crime but

[00:19:33] Speaker 00:
What we do know is that timing was very important to the jury's determination about whether or not the state had proven its case.

[00:19:41] Speaker 00:
The jury asked three questions related to the timeline.

[00:19:46] Speaker 00:
They asked whether the first three incidents when Margarita supposedly saw AC naked

[00:19:51] Speaker 00:
This shows the court.

[00:20:08] Speaker 00:
that timing was paramount to this jury to determining whether or not Margarita's testimony was credible as to this point.

[00:20:17] Speaker 00:
And what we know now is that from the TPO hearing that occurred on November 6, 2006, Margarita went before a family court judge and made a number of allegations as to why the TPO should be extended.

[00:20:31] Speaker 00:
At that time, she never once mentioned that AC was being inappropriately touched by Mr. Melendez.

[00:20:38] Speaker 04:
Your time is up.

[00:20:40] Speaker 04:
Let me ask my colleagues whether either has no additional questions We thank both counsel for your argument in the case the case of Melendez versus That Nevin is submitted