[00:00:55] Speaker 02:
are getting a prosecutor

[00:02:08] Speaker 02:
And so the suggestion that when the defense referred to this as an either-or deal, that somehow that was misrepresenting the nature of the deal, I think is unreasonable.

[00:02:22] Speaker 02:
Well, you've got the witness to testify to exactly that.

[00:02:27] Speaker 00:
I'm sorry, Your Honor.

[00:02:28] Speaker 00:
Well, your opening brief on cross-examination defense counsel was solicited from Hunter

[00:02:35] Speaker 00:
was if he testified truthfully, he would receive 31 years.

[00:02:39] Speaker 00:
And if he testified untruthfully, he'd receive 139 to life.

[00:02:43] Speaker 00:
So the witness is saying he understood it the same way that defense counsel did.

[00:02:49] Speaker 00:
Right.

[00:02:50] Speaker 00:
I think in the process.

[00:02:51] Speaker 00:
So where's the prejudice?

[00:02:52] Speaker 00:
Because if the jury hears from the witness, who's the person who's supportedly motivated by the sentence, that that's how he understands it.

[00:03:01] Speaker 00:
So he can save himself 100 and, what, seven, eight years.

[00:03:12] Speaker 00:
extremes, the fact that maybe as a matter of law, this trial judge could have gone to some places in between.

[00:03:19] Speaker 00:
That seems irrelevant if the point has been made to the jury that Hunter gains an enormous benefit.

[00:03:27] Speaker 00:
Basically, it's either 31 years or it's the rest of his life.

[00:04:05] Speaker 00:
seems to me to make the argument that defense counsel is trying to make kind of crystal clear.

[00:04:12] Speaker 00:
And what happened later, I'm having trouble figuring out how your client is prejudiced, particularly to the level of, but even directly, how is he prejudiced?

[00:04:32] Speaker 00:
I understand.

[00:04:32] Speaker 02:
And the answer, Your Honor, is because the juror was misled by the prosecution as to the nature of that deal.

[00:04:38] Speaker 00:
Well, I'm not sure that makes any difference.

[00:04:41] Speaker 00:
That is, there could be way stations between 31 years and 139 years.

[00:04:47] Speaker 00:
But if the witness has testified the same way,

[00:05:25] Speaker 02:
of deception to try and dissuade the jurors of that belief in the answer.

[00:06:44] Speaker 02:
that there was some remaining

[00:07:33] Speaker 02:
other, which gets us back to either or.

[00:07:36] Speaker 02:
And if I could just say that I'm a little bit troubled, it adds to the problem, I think.

[00:09:22] Speaker 00:
explicit in saying it saw no reasonable likelihood the jury would have understood and not failed to appreciate the point the defense counsel trial was trying to make, which is that it was enormously in Hunter's best interest and he was motivated to testify the way the prosecutor wanted him to.

[00:09:43] Speaker 00:
That's the point.

[00:09:44] Speaker 00:
That's

[00:09:59] Speaker 00:
concerned about whether the judgment against your client was defective under EFTA.

[00:10:08] Speaker 00:
And I have a real hard time understanding.

[00:10:10] Speaker 00:
I don't think I've heard from you a reason to think that

[00:10:38] Speaker 02:
well, let's just assume that the prosecutor did mislead the jurors when she said that the sentence could be anywhere between 31 and 139.

[00:10:52] Speaker 02:
Let's assume that happened.

[00:10:55] Speaker 02:
The court said, well, that's not meaningful because

[00:11:11] Speaker 02:
in that way, could misrepresent the law and overlook it and suggest, you know what, the jurors would never have understood the law anyway, so we're just going to overlook that.

[00:11:20] Speaker 02:
We think that's unreasonable.

[00:11:22] Speaker 02:
We think it's unreasonable under any standard.

[00:11:26] Speaker 02:
We've taken you over.

[00:11:27] Speaker 00:
I'll give you two minutes for rebuttal.

[00:11:29] Speaker 00:
Thank you.

[00:11:30] Speaker 00:
Okay.

[00:11:31] Speaker 00:
I will hear now from Mr. Thucourt.

[00:11:34] Speaker 00:
Did I pronounce that correctly?

[00:11:45] Speaker 01:
May it please the court.

[00:12:54] Speaker 00:
about this and it's California law so they rule that there were other sins.

[00:13:23] Speaker 01:
the jury had the ability to therefore evaluate his credibility.

[00:13:27] Speaker 01:
So how does this then become one of those instances of egregious prosecutorial misconduct that violates a defendant's due process rights?

[00:13:36] Speaker 01:
It simply doesn't.

[00:13:37] Speaker 01:
And I heard opposing counsel cite to Nepu.

[00:13:41] Speaker 01:
In Nepu, the prosecutor failed to correct a witness's testimony that he had not received any leniency agreement.

[00:13:48] Speaker 01:
That's completely different from the facts of this case.

[00:14:26] Speaker 01:
Two important points from that.

[00:15:09] Speaker 01:
like Miller versus Pate.

[00:16:33] Speaker 02:
I'd just like to get to Judge Clifton.

[00:17:04] Speaker 02:
I reject that.

[00:17:06] Speaker 02:
We reject that.