[00:00:01] Speaker 03:
Good morning.

[00:00:02] Speaker 03:
My name is Mara Goldman.

[00:00:03] Speaker 03:
I'm here on behalf of the appellant, Ricky Mendoza.

[00:00:07] Speaker 03:
I'd like to reserve four minutes for rebuttal.

[00:00:12] Speaker 03:
This is a case about an unconstitutional restriction on Ricky Mendoza's right to confront the single most important witness against him.

[00:00:21] Speaker 04:
I'm, of course, happy to address any other issues.

[00:00:24] Speaker 04:
How was he prevented from confronting the witness?

[00:00:26] Speaker 04:
You're speaking of Mr. Martin?

[00:00:27] Speaker 04:
Yes.

[00:00:28] Speaker 04:
How was he prevented from confronting Mr. Martin?

[00:00:30] Speaker 03:
He was prevented because he was not only unable to ask him about his expectations or assumptions regarding his new murder case and his treatment from the district attorney, but then that was compounded by the stipulation

[00:00:49] Speaker 03:
he involuntarily, despite objecting, that was read nonetheless, that told the jury, you must accept as a fact that he is getting nothing for his testimony.

[00:01:03] Speaker 03:
So not only was he prevented from questioning Mr. Martin about what he thought, how he understood the situation, but then the jury was basically told, you can't question it either.

[00:01:17] Speaker 03:
And I think those combined were a severe restriction.

[00:01:22] Speaker 04:
Well, the stipulation, as I read the record, was an accommodation to the defendant.

[00:01:26] Speaker 04:
Because the problem, of course, was that there was going to be this invocation of the Fifth Amendment persistently.

[00:01:31] Speaker 04:
And trial courts, of course, have a lot of discretion to run a trial and to not try to do a trial within a trial.

[00:01:36] Speaker 04:
So it struck me that the jury in this case learned a lot about Mr. Martin, including that he was subject to a pending murder charge.

[00:01:43] Speaker 03:
That is true.

[00:01:46] Speaker 03:
That is why ultimately defense counsel felt that they had to go forward with the stipulation despite the objectionable sentence at the end in which the jury is told that the district attorney is giving him nothing.

[00:02:04] Speaker 04:
And so- But we don't have any indication that the district attorney did give him anything.

[00:02:10] Speaker 03:
Well, that's true, however.

[00:02:13] Speaker 03:
If we go back into the pre-trial conference.

[00:02:17] Speaker 04:
The jury also knew.

[00:02:18] Speaker 04:
Can I just back up to make sure that I've got this right?

[00:02:20] Speaker 04:
He had, of course, when a defendant in the first trial then agreed to cooperate in the second trial and had taken a plea to it, I think a 10-year term.

[00:02:28] Speaker 04:
Did the jury know that?

[00:02:30] Speaker 03:
They knew that he was going to plead to a 10-year for an unspecified assault.

[00:02:38] Speaker 04:
As opposed to facing potentially life in prison.

[00:02:41] Speaker 04:
So the jury was aware of that.

[00:02:43] Speaker 04:
Yes.

[00:02:45] Speaker 04:
All right.

[00:02:45] Speaker 04:
Yes.

[00:02:45] Speaker 00:
So your basic complaint is that the jury didn't get to know about the attempted murder.

[00:02:52] Speaker 00:
But the stipulation's pretty clear about that.

[00:02:55] Speaker 03:
Well, I think my complaint is not that they didn't get to hear about the attempted murder, but that they were left with the impression that

[00:03:05] Speaker 03:
He was going to get punished for that murder regardless.

[00:03:10] Speaker 03:
So he had no motive to falsify his testimony because there was no benefit to him.

[00:03:15] Speaker 03:
He was going to be punished.

[00:03:18] Speaker 00:
Yes, I mean, what the stipulation says he's charged with attempted robbery, attempted carjacking and murder, a criminal street gang enhancement enhancement for intentionally discharging a firearm resulting in death, and two special allegations that the murder of the victim was committed to further the activities of criminal street gang at the murder was committed during the course of attempted robbery.

[00:03:39] Speaker 00:
What more did you want?

[00:03:41] Speaker 04:
I mean, seriously.

[00:03:44] Speaker 04:
Had Martin's testimony that he was a member of the gang, that he'd been tattooed as such, indicating that he had that role in the gang.

[00:03:51] Speaker 04:
Yes.

[00:03:52] Speaker 04:
It really strikes me that the jury knew a lot about Martin, had lots of reasons.

[00:03:57] Speaker 04:
I want to give you, in fairness, this is a very important case.

[00:03:59] Speaker 04:
I want to give you every opportunity to show me why I'm wrong.

[00:04:01] Speaker 04:
But it seems to me they have lots of reason to discount Martin's testimony.

[00:04:05] Speaker 04:
And they apparently believed him, or Hellam's, or

[00:04:09] Speaker 04:
the other corroborating evidence or some combination thereof.

[00:04:13] Speaker 04:
So what are we missing?

[00:04:14] Speaker 03:
I mean, I do think it has to have been Tony Martin's testimony.

[00:04:19] Speaker 03:
Why?

[00:04:19] Speaker 03:
Why?

[00:04:19] Speaker 04:
I'm not sure they needed Martin's testimony at all.

[00:04:21] Speaker 04:
What about Hellam's testimony and then the corroborative evidence vis-a-vis the coroner and the text?

[00:04:26] Speaker 03:
Because all of those things were presented in the first trial.

[00:04:30] Speaker 03:
Hellam's testified in the first trial.

[00:04:31] Speaker 03:
The texts were presented in the first trial.

[00:04:33] Speaker 03:
It was the same expert witness giving the same testimony.

[00:04:37] Speaker 03:
It was the same evidence.

[00:04:39] Speaker 03:
Really, the only thing that's different is Tony Martin.

[00:04:42] Speaker 03:
And in the district attorney's closing argument, she talks about that and about how she had to go to Tony Martin because no one else was giving her what she needed, which was to say that Ricky Mendoza did the shooting.

[00:04:59] Speaker 03:
So I think that, I mean, you can never be 100% certain, but this is much closer to certainty than almost any other

[00:05:09] Speaker 04:
When you say certainty, what you mean, I think, is it's much closer to certainty that the jury relied on Martin's testimony.

[00:05:17] Speaker 03:
Yes.

[00:05:17] Speaker 04:
Okay, so now tell me why you think they didn't have ample reason to disbelieve Martin and they chose to believe him.

[00:05:23] Speaker 04:
Well, I agree.

[00:05:24] Speaker 04:
They did have ample reason, but they... But they didn't.

[00:05:28] Speaker 04:
And that's exactly the kind of question that we would be very hard pressed to second guess.

[00:05:33] Speaker 03:
Well, but I think that, you know,

[00:05:36] Speaker 04:
Your argument is that he was denied the opportunity, that's how you started.

[00:05:39] Speaker 03:
Yes.

[00:05:40] Speaker 04:
Denied the opportunity to confront him sufficiently.

[00:05:42] Speaker 04:
Yes.

[00:05:43] Speaker 04:
Okay, so go back to that.

[00:05:44] Speaker 04:
What is it?

[00:05:45] Speaker 03:
So what he was denied is the opportunity to say, you have these very serious charges against you.

[00:05:52] Speaker 03:
Do you know for a certainty that you will

[00:06:00] Speaker 03:
Get no deal for this.

[00:06:03] Speaker 03:
Do you expect that your testimony might have an influence on what happens down the road with this case?

[00:06:11] Speaker 03:
Do you think that it matters to your future to whether you are going to spend life in prison?

[00:06:18] Speaker 03:
What you say today?

[00:06:21] Speaker 03:
And I think that that's very compelling.

[00:06:23] Speaker 03:
And that the jury should have had an opportunity to hear it, whatever his answers were.

[00:06:30] Speaker 00:
So what do you make of the California Court of Appeal conclusion that even if there were error, it's harmless?

[00:06:38] Speaker 00:
I mean, they point to the text messages, they point to the circumstantial evidence, and the fact that the jury could assess the credibility of Martin.

[00:06:49] Speaker 00:
They had plenty of reasons to assess the credibility of Martin.

[00:06:54] Speaker 03:
I think that it's wrong, of course.

[00:06:57] Speaker 03:
I think that they misapplied Chapman.

[00:07:00] Speaker 03:
I think that if you look at the factors in Van Arsdal, they were misapplied beginning most significantly with the fact that we have the rare situation where we know that all of those other things together did not persuade

[00:07:18] Speaker 03:
the jury in the previous trial.

[00:07:20] Speaker 03:
This was the big change.

[00:07:22] Speaker 03:
This is the difference.

[00:07:23] Speaker 03:
And so looking more specifically at the factors, the importance of the witness's testimony, California Court of Appeals notes, Tony Martin is the only person who says Ricky Mendoza shot the victim.

[00:07:36] Speaker 03:
He's the only person who even puts him near this.

[00:07:40] Speaker 03:
Whether it's cumulative?

[00:07:43] Speaker 03:
No, for the same reason.

[00:07:45] Speaker 03:
Whether there's corroborating and contradictory evidence?

[00:07:50] Speaker 03:
I suppose there are the text messages which are certainly open to interpretation, but there's tremendous... They're not particularly helpful.

[00:08:02] Speaker 03:
No, no they're not, but they're also not a basis to send someone to

[00:08:08] Speaker 03:
prison for life.

[00:08:09] Speaker 03:
I mean, I don't think that they are.

[00:08:10] Speaker 04:
On the night of the or very shortly thereafter of the crime, Martin told the police he didn't see anything.

[00:08:17] Speaker 04:
He wasn't in the garage.

[00:08:19] Speaker 04:
Yes, he did.

[00:08:20] Speaker 04:
And then he flipped completely and the jury heard that he went from being a defendant to receiving the 10 year sentence.

[00:08:29] Speaker 04:
Yes, that is true.

[00:08:32] Speaker 03:
But

[00:08:34] Speaker 03:
Still, I think that the jury, the end message to the jury was, okay, he's gonna get a 10-year sentence, well-deserved, since he shot five times at people in a car.

[00:08:50] Speaker 03:
But the impression that the jury was given is that now he has committed a much worse crime, a crime very similar in terms of the charges to the crime here,

[00:09:04] Speaker 03:
And the jury is being led to believe that he will absolutely be punished, that he will get no consideration and no deal.

[00:09:12] Speaker 03:
And so I think that that not only bolsters his testimony, but it also creates almost like a fairness, a misplaced sense of unfairness.

[00:09:24] Speaker 03:
If the jury thinks that this person is going to be punished for doing this act, we now have to find someone to punish.

[00:09:33] Speaker 03:
for the killing in the garage.

[00:09:38] Speaker 03:
So I think that going back to the Arzdal factors, the extent the cross-examination was allowed, there was cross-examination, and that is of course better than no cross-examination, but I think it was really undermined by the last sentence of the stipulation.

[00:10:00] Speaker 03:
And further by the district attorney's closing argument, which was almost, it was very close to testifying.

[00:10:10] Speaker 03:
The district attorney was the person who was in that meeting with Tony Martin, who did make whatever statements she made.

[00:10:18] Speaker 03:
And going back to the pretrial conference, what she said about it there is pretty different.

[00:10:28] Speaker 03:
What she says is,

[00:10:29] Speaker 03:
There's no offer on the table.

[00:10:32] Speaker 03:
It's too early.

[00:10:33] Speaker 03:
We haven't even had a prelim.

[00:10:37] Speaker 03:
To me, that is not the same as there will be no offers.

[00:10:43] Speaker 03:
We're not there yet.

[00:10:45] Speaker 03:
And this stipulation, in that sense, is extremely misleading.

[00:10:50] Speaker 03:
And the final factor is the strength or weakness of the government's case, again,

[00:10:59] Speaker 03:
Without Tony Martin, they have very little.

[00:11:02] Speaker 03:
They have other people who are being positively identified as the shooters.

[00:11:07] Speaker 03:
They have very little evidence.

[00:11:10] Speaker 03:
No one else is identifying Ricky Mendoza.

[00:11:14] Speaker 03:
And the case just isn't strong enough without it.

[00:11:17] Speaker 03:
Would you want to save four minutes for rebuttal?

[00:11:19] Speaker 04:
I would love to.

[00:11:19] Speaker 04:
Thank you.

[00:11:20] Speaker 04:
You bet.

[00:11:20] Speaker 04:
We'll hear from opposing counsel.

[00:11:33] Speaker 01:
Good morning, your honors.

[00:11:34] Speaker 01:
May it please the court, Michelle Swanson on behalf of the warden.

[00:11:43] Speaker 01:
As this court noted, Martin was impeached with his serious criminal behavior in both this case and in his other case.

[00:11:54] Speaker 01:
He was actually

[00:11:59] Speaker 01:
In this case, he had criminal liability not only for him shooting at the car in the street as they were fleeing the shooting inside the party.

[00:12:13] Speaker 01:
but he was also on the hook for being an accomplice to the killing of the victim in this case.

[00:12:19] Speaker 01:
So the jury was well aware that he was on the hook for murder and attempted murder charges, and that he got 10 years in this case in exchange for him testifying against appellant.

[00:12:33] Speaker 00:
So did he get a deal on the other case?

[00:12:36] Speaker 01:
So the parties agreed to a stipulation that said that as of the time he was testifying, he was not offered a deal in exchange for his testimony against appellant.

[00:12:49] Speaker 04:
The different question is pending.

[00:12:51] Speaker 01:
OK.

[00:12:52] Speaker 04:
That's not what Judge Thomas asked.

[00:12:53] Speaker 01:
I apologize, Your Honor.

[00:12:54] Speaker 00:
Did he get a deal on the other case?

[00:12:57] Speaker 01:
I don't know.

[00:12:58] Speaker 01:
I don't know if he got a deal on the other case.

[00:13:04] Speaker 00:
Isn't it relevant?

[00:13:05] Speaker 01:
It was not before the state court, so it's not relevant for this court's determination on federal habeas under EDPA.

[00:13:12] Speaker 00:
No, I think the concern is, and we've had this in a couple of cases, where there's kind of a wink-wink.

[00:13:18] Speaker 00:
We're not going to say you have a deal now, but there's an agreement that you will get a deal.

[00:13:24] Speaker 00:
And of course, the record is vacant on that.

[00:13:26] Speaker 00:
We don't know.

[00:13:27] Speaker 01:
Well, the defense agreed to the stipulation.

[00:13:29] Speaker 01:
They accepted the prosecution's representation that no deal had been offered.

[00:13:35] Speaker 01:
And so that's the record that was before the state court.

[00:13:41] Speaker 01:
And the defense has never offered any evidence that the prosecutor lied.

[00:13:47] Speaker 01:
I would also like to point out that the trial court did give the defense the opportunity to question Martin outside the presence of the jury and probe him

[00:13:57] Speaker 01:
on this issue to see if he would invoke his Fifth Amendment right not to testify.

[00:14:04] Speaker 01:
And they did not take the court up on that.

[00:14:07] Speaker 01:
So we don't know what Martin would have said.

[00:14:09] Speaker 01:
We don't know if he would have invoked his Fifth Amendment right.

[00:14:12] Speaker 01:
We don't know if he would have answered the question.

[00:14:13] Speaker 01:
We don't know if he would have said, yeah, they didn't offer me a deal.

[00:14:16] Speaker 01:
We don't know if he said, oh, but I sort of think they might have.

[00:14:20] Speaker 01:
They didn't do that.

[00:14:22] Speaker 01:
So it's entirely speculative right now for them to say that he would have given them

[00:14:28] Speaker 01:
the answer he wanted.

[00:14:29] Speaker 01:
The stipulation was arguably superior for those purposes because

[00:14:33] Speaker 01:
As the record shows, defense counsel was able to argue from the fact that he got such a favorable deal in this case, he wanted to stay on the prosecution's good side because he knew he had this pending murder case in which he was pegged as the shooter, that they could argue, and they did, that he could have hoped that by showing the prosecution he was going to cooperate, that he would in fact get a deal in the other case.

[00:14:59] Speaker 04:
I just wanted something that... He was asked the question, do you have use immunity today?

[00:15:04] Speaker 04:
And he said, yes.

[00:15:06] Speaker 04:
And he said, you have use immunity?

[00:15:08] Speaker 04:
Do you understand what use immunity means?

[00:15:11] Speaker 04:
And he said, no, I do not.

[00:15:12] Speaker 04:
Do you understand anything today could be used against?

[00:15:14] Speaker 04:
Yes.

[00:15:15] Speaker 04:
So you don't have use immunity.

[00:15:17] Speaker 04:
Do you understand that?

[00:15:17] Speaker 04:
Yes.

[00:15:19] Speaker 04:
So it seemed to me that Martin was at least under the impression that he might have an agreement.

[00:15:27] Speaker 04:
Regardless of what he- ER 765 in the record.

[00:15:30] Speaker 04:
So the jury heard this.

[00:15:31] Speaker 04:
This was all happening, I think, in front of the jury.

[00:15:33] Speaker 04:
That wasn't a sidebar.

[00:15:38] Speaker 01:
My understanding is that he was not given immunity, and that's why he was not allowed to invoke his Fifth Amendment right in front of the jury.

[00:15:48] Speaker 01:
I don't know.

[00:15:49] Speaker 00:
Well, he didn't have use immunity, but he'd already accepted the plea, right?

[00:15:56] Speaker 01:
I am not sure of the actual chronology of events.

[00:16:01] Speaker 01:
I don't know if he had already accepted the plea or if he was anticipating getting that plea deal after testifying.

[00:16:08] Speaker 00:
Well, he was asked, do you have a deal?

[00:16:10] Speaker 00:
And he said, yes, I have 10 years.

[00:16:11] Speaker 01:
Yeah.

[00:16:13] Speaker 00:
And so he thought he had a deal.

[00:16:16] Speaker 00:
Right.

[00:16:16] Speaker 00:
The jury knew he had a deal.

[00:16:18] Speaker 01:
Right.

[00:16:18] Speaker 01:
The jury knew that.

[00:16:19] Speaker 00:
But use of immunity was sort of irrelevant, because he already had a deal on this case.

[00:16:25] Speaker 01:
Well, in this case, correct.

[00:16:25] Speaker 01:
Yes.

[00:16:26] Speaker 01:
Correct.

[00:16:26] Speaker 00:
And that's all use of immunity was.

[00:16:28] Speaker 00:
He wasn't asked about the other events.

[00:16:31] Speaker 04:
It doesn't sound like he really knew what use of immunity meant.

[00:16:33] Speaker 00:
He didn't know what he was talking about.

[00:16:34] Speaker 04:
He didn't know what he was saying, right?

[00:16:36] Speaker 04:
Yes.

[00:16:38] Speaker 01:
Based on everything that the jury heard about Martin, his charges in both cases, his lies to the police, his inconsistent accounts of the shooting, the jury received sufficient information to apprise the biases and motivations of Martin.

[00:17:03] Speaker 01:
Could I ask a question?

[00:17:06] Speaker 04:
I asked opposing counsel whether they needed Martin's testimony at all, whether the state did, and whether the jury could have convicted just on Hellam's testimony and the other evidence in the record.

[00:17:16] Speaker 04:
What's your position on that?

[00:17:17] Speaker 04:
Her response was they didn't.

[00:17:18] Speaker 04:
First time around, they didn't.

[00:17:20] Speaker 01:
Well, I mean, my response to that would be whatever happened at the first trial, that's irrelevant.

[00:17:25] Speaker 01:
We don't know.

[00:17:26] Speaker 01:
We never know why a jury decided the way they did.

[00:17:30] Speaker 01:
Just because they hung in the first trial doesn't mean they disbelieved Helms.

[00:17:34] Speaker 04:
So do you think the other evidence, Sands Martin, would have been sufficient to convict in this case?

[00:17:39] Speaker 01:
Yes, because Helms testified that a pallent admitted twice to being the shooter.

[00:17:47] Speaker 01:
He admitted to Helms in the getaway car that he shot the victim.

[00:17:50] Speaker 01:
He explained how many times he shot him, where he shot him, which was very similar to the forensic evidence of the positioning, the location, and the number of shots.

[00:18:01] Speaker 01:
And he also, Helms testified that a pellet later told him and Martin,

[00:18:06] Speaker 01:
That he should the reason why he shot the victim was because he was a rival gang member So we that establishes that his identity as a shooter and then all of the other evidence with respect to the gang motive and So did they know that Helms was also a member of the gang he testified as such yes He was awesome, and that he'd been also protected for a couple of years Yes, and jury knew that yes, they did and

[00:18:34] Speaker 04:
They didn't believe either one of the gang members and thought that the gang members might just be trying to... After all, Helens wasn't a defendant in the first trial, right?

[00:18:43] Speaker 04:
Right.

[00:18:44] Speaker 04:
Right.

[00:18:44] Speaker 04:
And Martin was.

[00:18:49] Speaker 04:
Correct.

[00:18:49] Speaker 04:
So what if they hadn't believed either one of them?

[00:18:52] Speaker 01:
In this trial?

[00:18:53] Speaker 01:
Yeah.

[00:18:54] Speaker 01:
The second trial?

[00:18:57] Speaker 01:
Under the review, you know, the deferential review, the Jackson standard with respect to the sufficiency of the evidence with respect to the murder, we have to assume that the jury found all reasonable inferences in favor of the prosecution.

[00:19:09] Speaker 01:
But they would be left with what about who committed the murder?

[00:19:15] Speaker 04:
If they had not.

[00:19:16] Speaker 04:
Did they have the text messages from between the defendant and his girlfriend?

[00:19:20] Speaker 01:
Well, yeah, I would say that's fair if they didn't have any.

[00:19:23] Speaker 04:
I don't think there was testimony from anybody else in the car at the time the defendant made the statement to Helms, right?

[00:19:29] Speaker 04:
It's just Helms.

[00:19:31] Speaker 01:
I would say with respect to identity as the shooter, I would say that's a fair statement, that Helms and Martin provided that information to the jury.

[00:19:39] Speaker 00:
I think if you're left with just the text messages, that's a pretty weak case, don't you?

[00:19:45] Speaker 04:
I would say that's arguable, yes.

[00:19:47] Speaker 04:
And I think that's all there would be that would point specifically to Andoza, right?

[00:19:52] Speaker 04:
I think that's all there would be.

[00:19:54] Speaker 04:
The text messages.

[00:19:56] Speaker 04:
If we didn't have Helm to Martin, I think that's all there would be.

[00:19:58] Speaker 01:
Is that right?

[00:20:04] Speaker 01:
There was, I think it was Helms that testified about a parent retrieving his gun from the purse before the shooting.

[00:20:13] Speaker 01:
I can't remember if anybody else testified about that.

[00:20:18] Speaker 01:
But, yeah, yeah.

[00:20:31] Speaker 01:
As for the Chapman inquiry, appellant argues that the state court was wrong.

[00:20:39] Speaker 01:
Under Ed Pa, even if this court thought the state court got it wrong, that's not enough.

[00:20:44] Speaker 01:
It has to be unreasonable.

[00:20:46] Speaker 01:
You would have to find that every reasonable jurist, every single one,

[00:20:50] Speaker 01:
would agree that the state court got it wrong, and that's just not the case here.

[00:20:54] Speaker 01:
It was a reasonable Chapman decision.

[00:20:57] Speaker 01:
And I would argue, even if we went to Brecht, even if the court were to find that the state court was unreasonable on the Chapman determination, under Brecht, appellant can't meet their burden of showing actual prejudice.

[00:21:08] Speaker 01:
The fact that they didn't even probe

[00:21:12] Speaker 01:
Martin to ask him that question about whether he hoped for a deal shows it's entirely speculative that he would have given them a favorable answer.

[00:21:21] Speaker 01:
And so under BRIC, that's just not enough to satisfy their burden.

[00:21:24] Speaker 01:
Unless the court has questions on that issue or any others, I'm prepared to submit the matter.

[00:21:30] Speaker 04:
Thank you for your advocacy.

[00:21:32] Speaker 04:
We'll hear from opposing counsel.

[00:21:33] Speaker 04:
You've reserved, I think, just under four minutes.

[00:21:46] Speaker 03:
I have a lot to cover here.

[00:21:49] Speaker 03:
First, regarding why didn't defense counsel take the opportunity to see if he was really going to take the fifth outside the presence of the jury.

[00:22:00] Speaker 03:
This is ER 9-1541, and I'm sorry it's not in the briefs.

[00:22:08] Speaker 03:
But at this citation, we have the judge during the sentencing and motion for new trial saying, Mr. Martin, by and through his attorney to this court, alerted counsel and the court that he would assert his Fifth Amendment privilege.

[00:22:23] Speaker 03:
So I think that question was answered and the court, it was futile and there was no point in doing it.

[00:22:32] Speaker 03:
Um, next as to the question of did he get a deal?

[00:22:38] Speaker 03:
I don't know, but we do now and this is the purpose of the motion for judicial notice that all of the charges were dismissed against Tony Martin in his later case by the district attorney.

[00:22:52] Speaker 03:
I don't know why.

[00:22:54] Speaker 03:
Maybe he was innocent.

[00:22:57] Speaker 03:
Maybe he got the deal of a lifetime.

[00:22:58] Speaker 03:
I don't know, but.

[00:23:02] Speaker 03:
Either way, I think it does show the power that the district attorney had over him.

[00:23:08] Speaker 02:
I guess the question I would have is how that would actually figure into this case with the record that we have.

[00:23:19] Speaker 03:
I don't know.

[00:23:20] Speaker 03:
I mean, it is limited.

[00:23:22] Speaker 03:
because that information wasn't there.

[00:23:24] Speaker 03:
I think it's more just illustrative in the same way that if the docket in that case showed that he got life in prison, I think that would be illustrative.

[00:23:38] Speaker 03:
She didn't get a deal, but I agree, it's not.

[00:23:41] Speaker 04:
But I think the question is what would the jury have seen at the time?

[00:23:45] Speaker 04:
What would the jury have known at the time?

[00:23:47] Speaker 04:
Because a deal or no deal hadn't happened yet in the other case as far as we can tell.

[00:23:51] Speaker 04:
And I appreciated receiving the update that those charges ultimately didn't result in a conviction vis-a-vis Mr. Martin.

[00:24:00] Speaker 04:
But we still have to look back at what the jury knew at that time and they had

[00:24:05] Speaker 04:
lots of reasons to doubt Martin's testimony.

[00:24:08] Speaker 03:
Well, that is true, but I think that this would be really a game-changing reason.

[00:24:15] Speaker 03:
Regarding whether the first jury, maybe they believed George Helms, maybe they did, but all the more then, if they believed him and they still didn't convict, that just further shows that George Helms did not provide

[00:24:32] Speaker 03:
enough evidence to convict Mr Mendoza.

[00:24:35] Speaker 03:
Or they didn't believe him, in which case he also doesn't.

[00:24:40] Speaker 04:
At the first trial, did Hillems testify the same way about what he heard Mendoza say in the car as they were leaving?

[00:24:48] Speaker 03:
That's my understanding.

[00:24:51] Speaker 03:
know if it was identical testimony, but my understanding from looking at the record is that the district attorney tried a virtually identical case except for adding Tony Martin.

[00:25:06] Speaker 03:
And then I'd also like to address the question of could they have convicted Mr. Mendoza without Tony Martin?

[00:25:18] Speaker 03:
or without Tony Martin, George Helms, and I think the answer is clearly no.

[00:25:23] Speaker 03:
The evidence would not under any standard be sufficient.

[00:25:27] Speaker 03:
I think it would have been limited to the text, wouldn't it?

[00:25:34] Speaker ?:
Yes.

[00:25:35] Speaker 03:
This isn't a case where there's no one else who could have done it.

[00:25:38] Speaker 03:
This is a case where we have Chris Donaldson, who is identified by a witness as the shooter and who has pled to manslaughter for this case.

[00:25:51] Speaker 03:
So I think this is a situation where really we are looking at actual prejudice.

[00:25:57] Speaker 03:
We are looking at truly a miscarriage of justice.

[00:26:01] Speaker 04:
Thank you for your argument, counsel.

[00:26:02] Speaker 04:
Thank you.

[00:26:02] Speaker 04:
Thank you both.

[00:26:03] Speaker 04:
We'll take that case under advisement and go on to the next case on the calendar.