[00:00:10] Speaker 02:
Good morning, Your Honor.

[00:00:11] Speaker 02:
So may I please the court, Deputy Attorney General Seth McCutcheon on behalf of the state.

[00:00:16] Speaker 02:
I am prepared to discuss the entire argument, all of the claims, after discussing the PFR.

[00:00:27] Speaker 02:
I think the PFR set forth our position, and that is,

[00:00:31] Speaker 02:
This court, along with the district court, erred by not reviewing the record de novo after finding 2254-D satisfied.

[00:00:42] Speaker 02:
It's our position that a review of the record, a de novo review, would have seriously undermined petitioners' claims, especially as to the performance prompt.

[00:00:56] Speaker 05:
How would it have changed the prejudice prompt?

[00:01:00] Speaker 02:
It would not have.

[00:01:02] Speaker 02:
The record would have been the same.

[00:01:04] Speaker 02:
All right.

[00:01:08] Speaker 05:
Go right ahead.

[00:01:10] Speaker 02:
Should I go on and talk about the PFR or move on to?

[00:01:14] Speaker 05:
Is that the entirety of your argument regarding the PFR?

[00:01:16] Speaker 02:
Well, I'm happy to go into what the evidence in a de novo review would have shown.

[00:01:23] Speaker 02:
As for performance, if we are looking at all three claims, actually, in the evidentiary hearing, what came out undermined all three avenues in the sense that.

[00:01:40] Speaker 00:
And so which evidentiary hearing?

[00:01:42] Speaker 00:
Are you referring to the evidentiary hearing in front of the district court?

[00:01:46] Speaker 02:
That's correct.

[00:01:48] Speaker 00:
The district court explicitly said he was not considering any of that evidence because he shouldn't have had the evidentiary hearing to begin with.

[00:02:01] Speaker 02:
The evidentiary hearing was not to be considered during the D analysis.

[00:02:06] Speaker 02:
However, once the court had concluded that D had been satisfied, it was then incumbent upon the court to consider what was presented at the evidentiary hearing and review the record de novo.

[00:02:18] Speaker 00:
He said he was not considering it, the evidence before him.

[00:02:25] Speaker 00:
He was considering the evidence attached to the

[00:02:30] Speaker 00:
the petition and the evidence before the state court.

[00:02:36] Speaker 02:
And that's why the court erred.

[00:02:38] Speaker 02:
The court properly considered the state court record when doing the D analysis, but failed to consider what had been presented at the evidentiary hearing when it was required to conduct de novo review after finding D satisfied.

[00:02:57] Speaker 05:
So he had the evidentiary hearing prior to Pinholster, right?

[00:03:00] Speaker 02:
Correct.

[00:03:01] Speaker 05:
Had the four-day evidentiary hearing.

[00:03:02] Speaker 05:
Then Pinholster came out.

[00:03:04] Speaker 05:
I agree with Judge Wardlaw.

[00:03:05] Speaker 05:
He's got a very clear record saying, I'm not going to consider that evidence, right?

[00:03:09] Speaker 05:
I actually found your argument on this a little convoluted and maybe I'm not the only one, but I, but I just so you have a chance to clarify.

[00:03:16] Speaker 05:
I think your point, one point you make clearly is that he's argued that his counsel was ineffective in the state court.

[00:03:22] Speaker 05:
Other evidence should have been brought in, especially in the penalty phase.

[00:03:25] Speaker 05:
And that I think your point is we don't have to guess about what that would have been because he had an evidentiary hearing in federal district court.

[00:03:33] Speaker 05:
Yes.

[00:03:34] Speaker 05:
That's correct.

[00:03:34] Speaker 05:
Okay.

[00:03:35] Speaker 05:
And so you're arguing today that had the court gotten to the point when the court got to the point in its analysis where D was satisfied, 2254D was satisfied, there should have been a de novo review, and that would have changed

[00:03:50] Speaker 05:
and it would have changed the penalty phase or the, I guess you're saying both prongs of Strickland?

[00:03:54] Speaker 02:
That's correct.

[00:03:55] Speaker 05:
Okay, please explain to us how and why that would have changed.

[00:03:58] Speaker 02:
Certainly.

[00:03:58] Speaker 02:
So in the declaration that counsel submitted, he stated that he didn't pursue any mitigation defense beyond what was presented at the guilt phase.

[00:04:07] Speaker 02:
However, at the evidentiary hearing, his testimony- At the federal evidentiary hearing.

[00:04:10] Speaker 02:
Correct.

[00:04:11] Speaker 02:
At the federal evidentiary hearing, his testimony belied that statement.

[00:04:15] Speaker 02:
He stated that he made several unsuccessful phone calls to the uncle.

[00:04:19] Speaker 02:
Because that statement contradicts that, because the statement at the federal evidentiary hearing contradicts what he stated in his declaration, that statement in the declaration should be discounted in its entirety.

[00:04:35] Speaker 00:
Council, I'm still not following because the district court said it should not have held that evidentiary hearing.

[00:04:46] Speaker 00:
And it was not considering any of that evidence.

[00:04:50] Speaker 02:
And that's true.

[00:04:51] Speaker 02:
But the fact remains that the court did hold an evidentiary hearing.

[00:04:55] Speaker 02:
Testimony had been presented.

[00:04:57] Speaker 02:
The only thing that hadn't been done is the court making findings or rulings as to what was presented.

[00:05:04] Speaker 00:
I think we're a little bit in Alice in the Looking Glass.

[00:05:06] Speaker 00:
I mean, this is kind of going down rabbit hole.

[00:05:09] Speaker 00:
Because it doesn't make sense legally.

[00:05:13] Speaker 00:
Yeah, you go through the legal framework here.

[00:05:18] Speaker 01:
And maybe part of the confusion, I think, that we're all having is it's a kind of unusual.

[00:05:24] Speaker 01:
Usually it's the other way around.

[00:05:25] Speaker 01:
Usually it's the petitioner who wants the extra evidence considered, right?

[00:05:28] Speaker 01:
And here it's the state that's, I mean, it's an unusual posture, is it not?

[00:05:34] Speaker 02:
It is an unusual posture, I would say,

[00:05:37] Speaker 02:
Frequently, we see claims suffer after an evidentiary hearing.

[00:05:41] Speaker 02:
That's exactly what occurred here.

[00:05:42] Speaker 05:
But why would it be fair for us to peek at that?

[00:05:44] Speaker 05:
I mean, Pincholcher's really clear, and Shin versus Ramirez even clearer.

[00:05:48] Speaker 05:
We're really bound by the state court record.

[00:05:51] Speaker 02:
Well, we're bound by the state court record, but only so far is the question as to whether D is satisfied.

[00:05:57] Speaker 05:
So your point is now if D is satisfied, which you dispute, but if D is satisfied, then you think it's all fair game.

[00:06:03] Speaker 05:
And that's what I'm understanding your argument to be.

[00:06:06] Speaker 05:
And you want us to look at that.

[00:06:07] Speaker 05:
And what we would see there, you think, is the discrepancy with defense counsel's statement about whether he did or did not contact relatives.

[00:06:14] Speaker 02:
Yes.

[00:06:15] Speaker 05:
Okay.

[00:06:15] Speaker 05:
I understand that point.

[00:06:16] Speaker 05:
What's your next point?

[00:06:18] Speaker 02:
Well, based on that discrepancy and based on the

[00:06:22] Speaker 02:
the the notion that now that declaration should be discounted then the declaration is silent as to any any decision-making that council made as to any of the avenues of mitigation.

[00:06:34] Speaker 00:
Well except we do have his statement at the trial level to the trial court that he was he was not introducing any further mitigation evidence other than what he had previously introduced which was

[00:06:53] Speaker 00:
minimal at best in the guilt phase.

[00:06:56] Speaker 02:
And that's true.

[00:06:57] Speaker 02:
However, that statement's unrelated to whether he conducted any investigation or his decision-making behind why he was proceeding the way he did.

[00:07:09] Speaker 05:
Let me ask you a related question.

[00:07:11] Speaker 05:
During the guilt phase, there's a place in the transcript where he's having a conversation with the Superior Court Judge, and it's very clear that he said, I'm relying on

[00:07:20] Speaker 05:
the evidence produced in the guilt phase, that there was mitigation in the guilt phase, and I'm gonna rely on that for the penalty phase.

[00:07:28] Speaker 05:
I'm not gonna introduce any more.

[00:07:29] Speaker 05:
Is there any, that's my paraphrase, of course, but I think that is accurate.

[00:07:34] Speaker 05:
And so was there any mitigation evidence offered during the guilt phase that didn't come in through the defendant?

[00:07:45] Speaker 02:
Yes.

[00:07:46] Speaker 02:
Well, the article is gaining through the fog.

[00:07:51] Speaker 02:
whether we say it came in through the defendant or not.

[00:07:53] Speaker 05:
Well, it certainly relied on the defendant's veracity.

[00:07:56] Speaker 02:
Yes.

[00:07:56] Speaker 05:
He authored it.

[00:07:57] Speaker 02:
Yes.

[00:07:57] Speaker 05:
Is there anything else?

[00:07:59] Speaker 02:
It was bolstered by evidence presented by Ava, the victim's husband.

[00:08:05] Speaker 02:
There was evidence that... By what was?

[00:08:07] Speaker 05:
It?

[00:08:08] Speaker 05:
What's the it in that sentence?

[00:08:09] Speaker 02:
Sorry.

[00:08:09] Speaker 02:
The article.

[00:08:10] Speaker 02:
The statements in the article, as well as some of his testimony regarding the treatment that he experienced in the Soviet Army.

[00:08:17] Speaker 05:
The victim's husband's testimony, I think, was pretty vague on this point, but he did say that he understood, it was his understanding that Estonians were treated very poorly in the Russian military.

[00:08:28] Speaker 05:
Did he say more than that?

[00:08:29] Speaker 02:
Well, he explained that when Wade Lush showed up, he was haggard, he was malnourished, and

[00:08:37] Speaker 02:
not only bolstered the account that Wade Law put forth in this article, but it also kind of undercuts this idea that the jury would have discounted this article as coming from a liar such as Wade Law.

[00:08:54] Speaker 02:
Not to mention the fact that the article was written with the assistance of the victim.

[00:08:59] Speaker 05:
On prong one of Strickland, you just hit on what I think is your toughest problem for prong one, and that is that by the time

[00:09:07] Speaker 05:
the case rolled around to the penalty phase.

[00:09:09] Speaker 05:
The jury had decided beyond a reasonable doubt that, I think, that Wade Law had lied to them.

[00:09:15] Speaker 05:
They did not believe his account when he testified under oath about his alibi.

[00:09:20] Speaker 05:
And that was offered, of course, to counter the recorded confession.

[00:09:25] Speaker 05:
So it seems to me, given that scenario, it's very problematic that the defense counsel didn't offer any mitigating evidence from others.

[00:09:36] Speaker 02:
Well, I think that the decision not to pursue that line of inquiry should be looked at based on what counsel knew and what counsel did.

[00:09:46] Speaker 02:
And all of what he knew and all of what he did, or excuse me, the majority of what he knew and all of what he did was in the state court record.

[00:09:55] Speaker 02:
And what he knew when he decided to pursue this theme of

[00:09:59] Speaker 02:
Wade Law was isolated.

[00:10:01] Speaker 02:
He was alone in the world.

[00:10:03] Speaker 02:
He was under the domination by his co-defendant.

[00:10:07] Speaker 02:
What he knew is that Wade Law had been given up at one month old.

[00:10:11] Speaker 02:
He had been abandoned by his parents.

[00:10:13] Speaker 02:
He never saw his father.

[00:10:14] Speaker 02:
He saw his mother a couple times a year.

[00:10:17] Speaker 02:
He had one aunt in the United States that he had seen one time.

[00:10:21] Speaker 02:
that all of his friends in the United States were dead, that he was an average student that attended class regularly, that he was... And all of this evidence came in through Wade Law.

[00:10:35] Speaker 02:
No, it did not.

[00:10:37] Speaker 05:
In the guilt phase, who testified to these facts out of the Wade law?

[00:10:40] Speaker 02:
Well, it's not that it was presented to the jury.

[00:10:43] Speaker 02:
It's what defense counsel knew when he made the tactical decision.

[00:10:47] Speaker 05:
If that's what we're talking about, he made all of that pre-trial, right?

[00:10:49] Speaker 05:
He made those decisions pre-trial.

[00:10:51] Speaker 05:
And my point is not that that was unreasonable.

[00:10:53] Speaker 05:
My point is that when we get to the penalty phase and the jury has decided that that background evidence, which I think is dependent upon Wade law,

[00:11:03] Speaker 05:
That's very problematic because some of it is quite likely to have been considered mitigating by the jury, but the jury had just decided that Wade Law lied to them under oath.

[00:11:14] Speaker 05:
So at that juncture in the trial, it seems to me really incumbent upon the defense counsel to do something else to offer some other mitigating evidence.

[00:11:23] Speaker 02:
Well, I think the counsel knew that Wade Law had been found to be a liar as to his culpability in the crime.

[00:11:30] Speaker 02:
But I don't think it would be fair to say that they would have considered him to be a liar as to his account in the Soviet Army.

[00:11:36] Speaker 02:
And I think what's important is that at that point, Council had already presented the guilt phase.

[00:11:41] Speaker 02:
He had already set up the steps to present what he did present at penalty, which was, again, this theme that he was isolated and alone.

[00:11:50] Speaker 00:
And had he brought in... He could have easily, I mean, he could have presented evidence that corroborated the maltreatment, you know,

[00:11:59] Speaker 00:
the prosecutor, sorry, was able to get up and say, the prosecutor was able to get up and say, he was a deserter, you're gonna, you know, this guy's a terrible guy, he was a deserter, he deserted the Soviet army, and there was nothing that talked about

[00:12:24] Speaker 00:
Well, first of all, he was conscripted into that army.

[00:12:27] Speaker 00:
Second of all, he was treated like a slave in that army.

[00:12:30] Speaker 00:
And third of all, he was lucky to escape.

[00:12:33] Speaker 02:
Well, regardless of how the prosecution described his escape from Estonia.

[00:12:38] Speaker 00:
That's an important consideration, counsel, because you can only argue the evidence that is in the record.

[00:12:47] Speaker 00:
And so what did defense counsel

[00:12:53] Speaker 00:
have to counter that evidence?

[00:12:56] Speaker 02:
Well, counsel had the testimony of the victim's husband.

[00:13:00] Speaker 02:
Counsel had the fact that the victim herself helped aid in the development of this article.

[00:13:08] Speaker 02:
And defense counsel had the article, which all undercut the idea that.

[00:13:13] Speaker 00:
But as Judge Christen keeps pointing out, at the guilt phase, they decided they obviously didn't believe

[00:13:22] Speaker 00:
Wade law at the guilt phase.

[00:13:24] Speaker 00:
So.

[00:13:26] Speaker 02:
And again, to bring in this new, unremarkable mitigation presentation that is now being put forth would have undercut what was presented.

[00:13:36] Speaker 02:
And that was that he was alone to bring in now all these family members to testify on his behalf, which.

[00:13:43] Speaker 05:
Oh, you think it would have contradicted the notion that he was alone in the world?

[00:13:46] Speaker 02:
Certainly, certainly.

[00:13:48] Speaker 00:
It also was alone in the United States.

[00:13:50] Speaker 00:
But, you know, it omitted

[00:13:52] Speaker 00:
the fact that he was raised by his grandfather, had a great relationship there, was accepted into an elite academy in his hometown or in his state, his country, and was a superb marksman, got awards for being a good citizen in that school.

[00:14:16] Speaker 00:
I mean, all of this evidence that was available

[00:14:21] Speaker 00:
And then we have the expert saying that that evidence was readily available.

[00:14:28] Speaker 00:
And we don't have a landing situation here because the way that wasn't stopping or interfering with his attorney and he'd even begin to at first express reluctance for the attorney getting this evidence, but he had not stopped him and he was changing his mind about

[00:14:48] Speaker 00:
going back and getting people and we have evidence that it could have been done at the time because it was done for his co-defendant.

[00:14:58] Speaker 02:
Well, just if I could make a couple points in response, not only would it have undercut this idea that he was alone, but it also would have severely undercut the theme that he was under the domination of his co-defendant.

[00:15:10] Speaker 02:
The teachers and the classmates would have come and talked about how he had developed such strong willpower in their view.

[00:15:23] Speaker 02:
These themes that counsel presented these compelling themes which did Cause the jury to deliberate for a lengthy amount of time would have been undercut and replaced I think some of them would have been I think some of them are a mixed bag.

[00:15:38] Speaker 05:
I understand that You've made that argument in the some of your briefing.

[00:15:42] Speaker 05:
I think persuasively I can imagine some of this cutting two ways certainly there's the the view that he was some people perhaps could react and

[00:15:52] Speaker 05:
in that way that he'd overcome a great deal and was actually very fortunate to make it to this country.

[00:15:56] Speaker 05:
So I appreciate that argument.

[00:15:59] Speaker 05:
But what about the evidence which is, you know, we typically see evidence of when it exists of a prisoner adjusting very well to prison.

[00:16:10] Speaker 05:
I really struggle to see any downside to introducing that evidence.

[00:16:13] Speaker 05:
And by the time of trial, there would have been about a two-year track record of that, I think.

[00:16:17] Speaker 02:
Well, I don't think there was a downside.

[00:16:20] Speaker 02:
I don't think there was a requirement to present that evidence.

[00:16:23] Speaker 02:
It certainly could have been presented in mitigation.

[00:16:27] Speaker 02:
However, the evidence was simply that he performed well in jail.

[00:16:32] Speaker 02:
It was very paltry, especially in light of the fact that

[00:16:35] Speaker 02:
As your honor touched on, he squandered the good fortune of being able to escape the Soviet army.

[00:16:40] Speaker 05:
But you're going to add to weighing.

[00:16:41] Speaker 05:
That's essentially, now you're pivoting to weighing the evidence.

[00:16:44] Speaker 05:
But in terms of the pronged one aspect of Strickland, whether it was deficient performance to not introduce it, I struggle to see how it would not be.

[00:16:52] Speaker 05:
One thing jurors want to know is that this person's not going to kill again.

[00:16:57] Speaker 05:
And it seems to me that in the closing argument, counsel delivered, he argued almost the same thing.

[00:17:04] Speaker 05:
There's a line or two in the closing, and I'm sure you're familiar with it, perhaps more familiar with it than I am, but I can paraphrase it.

[00:17:11] Speaker 05:
He said something to the jury to the effect of who better to teach other inmates about the importance of freedom and the value of remaining crime free.

[00:17:20] Speaker 05:
He made an argument like that.

[00:17:22] Speaker 05:
And it seems to me that that really went to this notion that he's going to do well in prison.

[00:17:26] Speaker 05:
He has something to offer in prison.

[00:17:29] Speaker 05:
But the two-year track record of, I think, really quite exemplary performance was not before the trial court.

[00:17:39] Speaker 02:
Well, two points.

[00:17:40] Speaker 02:
First, I think it may have offered an insignificant benefit, if any at all.

[00:17:45] Speaker 02:
However, and this goes back to the performance prong,

[00:17:49] Speaker 02:
Counsel's declaration, as the district court acknowledges, is silent as to jail behavior.

[00:17:55] Speaker 02:
And this court must take that silence and presume that counsel acted competently when he chose to focus on more compelling themes.

[00:18:02] Speaker 05:
Well, now you're confusing me a little bit, because now you're going back to peeking at the federal evidentiary hearing, counsel's declaration.

[00:18:08] Speaker 05:
I'm not.

[00:18:08] Speaker 05:
Or, I'm sorry, go ahead.

[00:18:09] Speaker 02:
The declaration that he submitted at the state court level.

[00:18:12] Speaker 02:
Different declaration, OK.

[00:18:14] Speaker 02:
Well, same declaration.

[00:18:15] Speaker 02:
The declaration that counsel submitted is the same declaration throughout.

[00:18:19] Speaker 05:
We're miscommunicating, but I know what you mean.

[00:18:21] Speaker 02:
Okay.

[00:18:21] Speaker 02:
Go ahead.

[00:18:22] Speaker 02:
All right.

[00:18:22] Speaker 02:
So the declaration that was submitted, the district court acknowledged that it said nothing as to jail behavior, didn't talk about Wade Love's behavior or any decisions concerning that behavior.

[00:18:33] Speaker 05:
Right.

[00:18:33] Speaker 02:
So because that omission exists, that silence must be taken, and counsel must be presumed to have acted competently when he chose to presume.

[00:18:45] Speaker 05:
It's a presumption.

[00:18:45] Speaker 05:
It's not a rebuttable presumption.

[00:18:47] Speaker 05:
And I'm trying to figure out what reason could there be, how could it have been strategic to omit that evidence.

[00:18:52] Speaker 05:
So I think we're saying the same thing.

[00:18:53] Speaker 05:
I just really struggled to see it.

[00:18:54] Speaker 02:
And I think the answer is that because there were other more compelling themes that council chose to present.

[00:19:01] Speaker 02:
But if we do look at whether he was prejudiced by the failure to present... Before you move to prong two, I'm going to stop you and ask if my colleagues have other prong one questions.

[00:19:12] Speaker 05:
Doesn't seem like they do.

[00:19:13] Speaker 05:
Go right ahead.

[00:19:13] Speaker 05:
Prong 2.

[00:19:14] Speaker 02:
So if we are talking about prejudice, we not only look at this mitigation evidence that is now being put forth, but we look at the facts of the crime.

[00:19:25] Speaker 02:
And this was a heinous crime.

[00:19:27] Speaker 02:
Weylo was an axe murderer.

[00:19:28] Speaker 02:
He murdered a little old lady in her home.

[00:19:31] Speaker 02:
the violation of trust that occurred was severe.

[00:19:35] Speaker 02:
Wade Law, this maternal, this motherly figure who had taken him in, who had provided shelter and love and healthcare and employment, he waited in her home with a hatchet because she wouldn't give him the value of a used car.

[00:19:49] Speaker 02:
And he took that hatchet and he bludgeoned her.

[00:19:51] Speaker 02:
And he smashed her face in and he broke out her teeth and then he turned the hatchet around and he plunged it into her head

[00:19:57] Speaker 02:
and cut off a flap of scalp and bone.

[00:20:00] Speaker 02:
And then after doing that, he showed absolutely no remorse when he fled to Montreal and wrote his co-defendant a letter talking about how he was celebrating by drinking Bavarian beers.

[00:20:11] Speaker 02:
So these horrible circumstances of the crime would not have been outweighed at all by this new mitigation evidence.

[00:20:23] Speaker 02:
This is not the kind of evidence that

[00:20:25] Speaker 02:
this court or the Supreme Court has recognized makes a difference.

[00:20:28] Speaker 02:
This was not abject poverty.

[00:20:31] Speaker 02:
This is not sexual abuse.

[00:20:35] Speaker 02:
This was extremely benign.

[00:20:38] Speaker 02:
This was that he didn't get in trouble while awaiting trial, which should be expected.

[00:20:44] Speaker 05:
I know it is.

[00:20:47] Speaker 05:
It's also unique in that he was 20 years old.

[00:20:49] Speaker 05:
There is that.

[00:20:49] Speaker 05:
That's true.

[00:20:50] Speaker 05:
And that's in the briefing as well.

[00:20:52] Speaker 02:
All of his declarations say very little about him.

[00:20:57] Speaker 02:
If you look at all the family declarations that he provided, the most that they say is that he was quiet and calm.

[00:21:04] Speaker 00:
Council, are we supposed to consider the evidence that this is why I'm not there?

[00:21:10] Speaker 00:
By the way, I have congestion, so excuse me.

[00:21:13] Speaker 00:
But aren't we supposed to weigh what could have been presented with what was presented?

[00:21:19] Speaker 00:
And he was tortured.

[00:21:21] Speaker 00:
You know, there's all this other stuff that didn't come in that the jury didn't consider.

[00:21:25] Speaker 00:
And yet they still took nine.

[00:21:28] Speaker 00:
They took less than a day to convict him.

[00:21:31] Speaker 00:
They took nine days.

[00:21:33] Speaker 00:
And they, with two notes saying they couldn't reach a unanimous decision,

[00:21:40] Speaker 00:
What were they, even so, even having found all of that, there was a lot of evidence that could have humanized Wade Law and could have, I mean, he was tortured in the Soviet army.

[00:21:54] Speaker 00:
That must have been some kind of an experience that could warp someone and even yet, and maybe cause him not to think of the serious consequences of all of this stuff

[00:22:08] Speaker 00:
as a 20-year-old.

[00:22:09] Speaker 00:
And yet, once he was imprisoned here, he was getting high positions among the prison population and no problems at all.

[00:22:22] Speaker 00:
And the question, if that had come in, the question is, would the jury have just tipped it slightly toward life?

[00:22:31] Speaker 00:
Because there was no threat that in this structured environment that he

[00:22:38] Speaker 00:
was likely to kill again.

[00:22:42] Speaker 02:
Well, I'd like to make two points in response.

[00:22:45] Speaker 02:
First, I suspect that had they deliberated for a day, we would be here arguing that that showed that he was certainly prejudiced.

[00:22:52] Speaker 05:
Now you're speaking about the penalty phase deliberations or the guilt phase?

[00:22:56] Speaker 02:
Correct, the penalty phase deliberations.

[00:22:59] Speaker 02:
So I don't think the length of time shows anything beyond that counsel presented a compelling penalty phase argument.

[00:23:09] Speaker 00:
But he didn't.

[00:23:10] Speaker 00:
That's the whole problem.

[00:23:11] Speaker 00:
He didn't present any mitigation evidence, mitigation evidence in the penalty phase.

[00:23:22] Speaker 02:
The jury was struggling over something and counsel presented compelling themes to give them pause.

[00:23:30] Speaker 00:
Wouldn't it have been nice if there was evidence that supported those themes?

[00:23:35] Speaker 02:
There was evidence supporting the themes that he presented.

[00:23:39] Speaker 02:
However, I think that anything is possible.

[00:23:42] Speaker 02:
And what the question must be and is, is it, can it be said beyond all fair minded disagreement that it was reasonably probable that this new mitigation defense would have resulted in a different outcome?

[00:24:00] Speaker 02:
And the answer is no, not only again,

[00:24:03] Speaker 02:
Would it have conflicted with what was presented?

[00:24:06] Speaker 02:
But it was very unremarkable evidence.

[00:24:10] Speaker 02:
And it was not the evidence typically seen that would get the result that Wade Law is now asking for.

[00:24:18] Speaker 05:
Remind me how long they deliberated in the guilt phase, please?

[00:24:25] Speaker 02:
I'm sorry.

[00:24:26] Speaker 02:
I don't know.

[00:24:26] Speaker 02:
I would be guessing.

[00:24:27] Speaker 05:
I've got a record site here.

[00:24:28] Speaker 05:
It's fine.

[00:24:28] Speaker 05:
Thank you.

[00:24:29] Speaker 02:
Nine days in the penalty phase.

[00:24:30] Speaker 02:
And there were two notes sent out.

[00:24:34] Speaker 01:
Can I ask you just to sort of go back to where we started with?

[00:24:39] Speaker 01:
I mean, do you think that the argument about whether we consider the evidence that was presented in the federal district court hearing is outcome determinative, or do you think you would win either way?

[00:24:52] Speaker 02:
I think we win either way on prejudice, certainly.

[00:24:57] Speaker 02:
But I think that if we do look at what was presented at the evidentiary hearing, I think we would win on performance as well.

[00:25:05] Speaker 01:
And without it, do you?

[00:25:07] Speaker 02:
That was going to be, I was going to say, I think we win on performance anyways, but I think that the evidentiary hearing evidence considerably bolsters our argument.

[00:25:19] Speaker ?:
Thank you.

[00:25:21] Speaker 02:
And for all of those reasons, I would ask that this court reverse the district court's grant of penalty face relief.

[00:25:27] Speaker 05:
Thank you, counsel.

[00:25:28] Speaker 02:
Thank you.

[00:25:29] Speaker 05:
Did you have one more?

[00:25:30] Speaker 05:
No.

[00:25:30] Speaker 05:
Oh, no.

[00:25:31] Speaker 02:
Oh, all right.

[00:25:32] Speaker 02:
I see I have five minutes left.

[00:25:33] Speaker 02:
Is that where I'm supposed to be?

[00:25:34] Speaker 02:
We'll reserve it for you.

[00:25:34] Speaker 02:
Thank you.

[00:25:53] Speaker 05:
Council, could you give me just one minute?

[00:25:55] Speaker 05:
I'm going to check one thing before you begin.

[00:26:10] Speaker 04:
Pardon me.

[00:26:11] Speaker 04:
Marta van Lendingham, appearing on behalf of Town of Wade Law.

[00:26:16] Speaker 04:
And if your honors allow, I would like to begin with just a quick rebuttal.

[00:26:21] Speaker 05:
Hang on one second.

[00:26:22] Speaker 05:
Let's just be really clear about, I've asked you both to address, we're going to hear an argument on the PFR today.

[00:26:28] Speaker 05:
Are you also planning to argue the rest of the case today?

[00:26:31] Speaker 05:
I am absolutely ready.

[00:26:33] Speaker 05:
Go right ahead.

[00:26:35] Speaker 00:
All right, counsel, I'm sorry.

[00:26:36] Speaker 00:
I just didn't.

[00:26:37] Speaker 00:
I don't have a day sheet.

[00:26:38] Speaker 00:
What's your name again?

[00:26:41] Speaker 04:
Marta Van Landingham for Town Award Law.

[00:26:45] Speaker 04:
Go right ahead.

[00:26:47] Speaker 04:
So to begin quickly by addressing some of the points made by the state, first of all, Your Honor asked how long the deliberations were on the guilt phase, and they lasted four days, four court days.

[00:27:00] Speaker 05:
You just verified that.

[00:27:01] Speaker 05:
Thank you.

[00:27:02] Speaker 05:
I appreciate the confirmation.

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

[00:27:04] Speaker 04:
I also want to point out that those four court days were

[00:27:07] Speaker 04:
immediately preceding the nine days of penalty phase deliberation because the penalty phase presentation only lasted one afternoon, including jury instructions.

[00:27:17] Speaker 05:
But what do we make of the fact that the jury, I'll just tell you for the benefit of both counsel, for me the most compelling fact about the penalty phase is the length of the deliberations.

[00:27:32] Speaker 05:
That's a long deliberation.

[00:27:34] Speaker 05:
there's also a lengthy deliberation on phase one and they've heard his tape recorder confession.

[00:27:39] Speaker 05:
They deliberated four days.

[00:27:40] Speaker 04:
Correct.

[00:27:41] Speaker 05:
What do I make of that?

[00:27:42] Speaker 04:
They even asked during Gail Faye's deliberations to hear that again.

[00:27:46] Speaker 04:
So I think what we make of it is that

[00:27:50] Speaker 04:
looking at the entirety of our claims and the evidence presented and the complete lack of failure of trial counsel to conduct any investigation and present witnesses for penalty and to do very little for guilt phase shows us that there is no reasonable probability that one juror would not have, absent these constitutional violations, reached a different conclusion, at least on the penalty phase, if not on guilt phase.

[00:28:17] Speaker 05:
I think that's what we're to make of it, because... You just argued that there was no reasonable probability that a jury... You mean that there was a reasonable probability.

[00:28:26] Speaker 05:
Oh, correct.

[00:28:27] Speaker 05:
That's all right.

[00:28:29] Speaker 05:
Yes.

[00:28:29] Speaker 05:
Because a different inference could be drawn.

[00:28:32] Speaker 05:
Having heard his tape-recorded confession, the jury took four days to convict.

[00:28:41] Speaker 05:
So this was a very careful jury, a very deliberative jury, for whatever reason, and we never know.

[00:28:47] Speaker 05:
exactly why.

[00:28:48] Speaker 05:
But that, it makes it somewhat less surprising to me then that they would deliberate as long as they did on the guilt phase, on the penalty phase.

[00:28:59] Speaker 04:
On the penalty phase, they had no mitigation evidence really except what had been presented on guilt phase.

[00:29:06] Speaker 04:
And they knew that there had been a co-defendant

[00:29:11] Speaker 04:
they obviously had a lot of questions as did frankly the DA before all of this as to whether Mr. Wade law was even death worthy so I think that's what we see and we can't really question what those nine days of deliberation were about because of the two jury notes expressly stating that they were deadlocked and on the second jury note they revealed uh... they were polled and

[00:29:38] Speaker 04:
Ten of them said that there was no reasonable probability, they might not have used reasonable probability, no probability that they could reach a unanimous verdict.

[00:29:48] Speaker 04:
So I think that shows pretty clear that it would not have taken much to send them back in the other direction to a vote for life.

[00:29:57] Speaker 04:
But they didn't have anything, much less a little bit, they could have done so.

[00:30:03] Speaker 04:
In terms of other issues raised by the state, I think his presentation really showed not just the paucity of the evidence, but the complete paucity of investigation.

[00:30:15] Speaker 04:
He pointed to the statement by trial counsel that he made.

[00:30:22] Speaker 04:
He attempted to call the uncle a few times.

[00:30:24] Speaker 04:
An attempt to call is not an investigation.

[00:30:29] Speaker 04:
The theme

[00:30:33] Speaker 04:
of being isolated and of domination, neither of those themes can be reasonable lacking any investigation.

[00:30:43] Speaker 04:
For example, had he investigated, he would have discovered a lot of evidence of domination by Peter Sakarias of Tana Wade Law.

[00:30:53] Speaker 05:
There were a number- Well, the California Supreme Court didn't think so.

[00:30:57] Speaker 04:
We don't know what they thought.

[00:30:59] Speaker 04:
They provided a summary.

[00:31:00] Speaker 04:
Oh, you mean in the separate.

[00:31:04] Speaker 04:
Right.

[00:31:06] Speaker 05:
But going back to your other point about the other relatives who could have corroborated, who could have offered opinions to humanize, opposing counsel argues that that would have been contrary to defense counsel's strategy, his theme which was that this is a very young person, 20 years old, who was alone in the world.

[00:31:27] Speaker 04:
A very young person, 20 years old, who is easily dominated would be, as far as I can see, a much more powerful mitigation strategy.

[00:31:36] Speaker 01:
But regardless, any strategy that's not based on a reasonable investigation is not itself... How does any of the evidence from Estonia or any of the evidence from the army, which he escaped from, show that he's easily dominated?

[00:31:55] Speaker 04:
There were discussions within the declarations about his being a follower.

[00:32:01] Speaker 04:
One of his good friends, the brother of his girlfriend, whose name escapes me right now, was himself a very active, dominating, and talked about how basically Tawano followed him and everything.

[00:32:16] Speaker 04:
So there was evidence that would have supported that, that was never found because there was no investigation.

[00:32:24] Speaker 04:
And so it wouldn't have undercut that investigation, this theme at all.

[00:32:30] Speaker 04:
It would have supported it and made it stronger.

[00:32:33] Speaker 04:
If you don't mind, I'd like to touch on the PFR.

[00:32:39] Speaker 04:
And then that might bring us back to some of the more general arguments we can make.

[00:32:47] Speaker 04:
The state has not met the standard for panel rehearing under Rule 40.

[00:32:53] Speaker 04:
It seems to me that the state is seeking to relitigate on the happenstance that a member of the former panel has retired.

[00:33:01] Speaker 04:
And the PFR is based on a claim of error in a footnote where the court finds a waiver of the state's possible objection to the court's procedure in analyzing the claim.

[00:33:16] Speaker 04:
And the state misrepresent that footnote as finding a waiver in the state's objection to the sufficiency of the evidence proffered as to a subclaim.

[00:33:25] Speaker 04:
So right there, there's no error.

[00:33:28] Speaker 04:
And the state did waive any objection to the procedure because it didn't make it at any point before.

[00:33:38] Speaker 05:
Well, you're talking about footnote one.

[00:33:40] Speaker 05:
Yes.

[00:33:41] Speaker 05:
And it mentions a couple of different aspects of procedure.

[00:33:45] Speaker 05:
Is it your contention, or taking them in order, is it your contention that the state has waived any objection to the fact that there was not a de novo review conducted by the district court after it found 2254D was satisfied?

[00:33:57] Speaker 04:
Correct.

[00:33:58] Speaker 04:
As the footnote noted, the state's

[00:34:02] Speaker 04:
Objection was only asked to its 2254D analysis, not as to its procedure.

[00:34:08] Speaker 05:
So I asked a different question.

[00:34:10] Speaker 05:
That's OK.

[00:34:11] Speaker 05:
You've got a lot of things going on today.

[00:34:14] Speaker 05:
There's a lot of balls in the air.

[00:34:15] Speaker 05:
But I was trying to ask, and maybe I didn't do a very good job, but I'm trying to ask whether your position is that the state waived any objection to the aspect the trial court's decision that just went

[00:34:30] Speaker 05:
didn't conduct a separate de novo review.

[00:34:35] Speaker 05:
Yes.

[00:34:37] Speaker 04:
That is our position.

[00:34:38] Speaker 04:
And even had the state not waived that objection, that objection would be unavailing.

[00:34:47] Speaker 04:
And here's where I'd like to really dive into the PFR.

[00:34:51] Speaker 04:
And there are four key issues I'd like to raise, just to quickly roadmap them for you.

[00:34:56] Speaker 04:
The facts underlying the subclaim that the state brought into issue in its PFR have never been disputed by the state.

[00:35:05] Speaker 04:
Number two, the competency of the evidence that Wade Law submitted in support of these facts was not challenged at all until this appeal.

[00:35:14] Speaker 04:
And two of the four supporting documents to the subclaim of good adjustment to jail have remained completely unchallenged, even in the PFR.

[00:35:25] Speaker 04:
an appeal.

[00:35:26] Speaker 04:
Number three, especially when the facts underlying a claim are undisputed, a court can grant relief with no disciplinary hearing on both D and A. And four, there is no requirement for a formulaic statement that a federal court is reviewing separately the two analytical steps.

[00:35:46] Speaker 04:
So to begin with the first point, the district court also found that the facts underlying the subclaim that the state placed at issue

[00:35:55] Speaker 04:
have never been disputed.

[00:35:56] Speaker 04:
The state has never argued the Tauna Wade law did not have a record of good behavior in jail.

[00:36:03] Speaker 04:
And it has never disputed that trial counsel failed to investigate and present evidence of this known fact.

[00:36:10] Speaker 04:
It has only argued as to a possible strategic basis, one that this court, in its opinion, found unavailing.

[00:36:21] Speaker 04:
With regard to the competency

[00:36:24] Speaker 04:
It did not challenge the competency of the evidence presented to support the subclaim in either the state or the district court.

[00:36:31] Speaker 04:
On appeal before this court, it is that challenged only the competency of two of the supporting documents, but never the third, which is the charging memo from the DA supporting the initial decision not to charge Wade Law capitally, or the fourth, which is trial counsel's declaration,

[00:36:49] Speaker 04:
The state has said that trial counsel's declaration that was before the state court was silent as to the issue of the good behavior, but that's not actually correct.

[00:37:01] Speaker 04:
In that declaration, trial counsel stated, I was aware that there were no disciplinary proceedings in county jail against Mr. Wade Law.

[00:37:12] Speaker 04:
And then he went on to state, I did not investigate or develop any other mitigating evidence relating to good behavior.

[00:37:19] Speaker 04:
So that was at 1ER 280 and 281.

[00:37:27] Speaker 04:
evidence of IAC for failure to bring this subclaim has been uncontested, unrebutted, unchallenged.

[00:37:34] Speaker 04:
And then with regard to the DA memo that has not, as far as I can see, been mentioned by the state with regard to this subclaim, not only did trial counsel fail to present it to the jury as evidence of good jail behavior, which under Skipper

[00:37:50] Speaker 04:
is very valuable to show not just peaceable conduct and adjustment to prison, and also to undercut the DA's repeated assertion that Mr. Wade Law was dangerous and did not mind killing.

[00:38:11] Speaker 04:
But it would also have gone to culpability, which

[00:38:15] Speaker 04:
in other ways would be highly mitigating of Mr. Wade law as this court has previously found that this sort of charging decision memo can be mitigating in Sanders v. Davis.

[00:38:30] Speaker 04:
This January 1989 memo concluded, I concur with the previous attorneys who have reviewed this case that the death penalty is

[00:38:40] Speaker 04:
the appropriate penalty for defendant Sakarias, but that the death penalty is not the appropriate penalty for defendant Wade Law.

[00:38:49] Speaker 04:
It goes on to lay out the basis for why.

[00:38:52] Speaker 04:
Not just the fact that Mr. Sakarias had a fairly violent record within jail.

[00:39:00] Speaker 04:
He was found twice with homemade knives and once associated with an unloaded gun.

[00:39:06] Speaker 04:
But it also talked about how Sakarias, that there was evidence that Sakarias may have been more dominant and that Wade Law does not evidence the same degree of danger that Sakarias does.

[00:39:19] Speaker 04:
And I can provide the sites if you'd like.

[00:39:22] Speaker 04:
In the end, the DA only shifted gear and sought the death penalty against Wade Law after Sakarias, who'd been scheduled to be tried first, was declared incompetent to be tried.

[00:39:34] Speaker 04:
So then the DA changed its charge to death penalty against weight law.

[00:39:44] Speaker 04:
shows I think that regardless of the challenge to the other two documents, there was undisputed and indisputable evidence to support this subclaim.

[00:39:55] Speaker 04:
And that presentation of evidence and support would have been mitigating in any number of ways.

[00:40:02] Speaker 04:
And then my third point was that when the facts underlaying

[00:40:05] Speaker 04:
a claim are undisputed, a court can grant relief without an evidentiary hearing.

[00:40:11] Speaker 04:
And the Ninth Circuit opinion that goes into this issue in most detail is James B. Ryan, which talks about how when there is no evidentiary hearing and no

[00:40:32] Speaker 04:
basically disputable claims, that that is fine, that the court should and can grant relief under both D and A. Some of the quotes from that are, a general desire to cross-examine an offiant does not suffice to raise a genuine dispute, and basically it concludes that the district court was within its discretion to deny an evidentiary hearing absent controverted facts.

[00:40:58] Speaker 04:
And that opinion also

[00:41:01] Speaker 04:
lists Supreme Court and Ninth Circuit opinions to the same issue.

[00:41:09] Speaker 04:
But here, our facts are better than James because, as the state pointed out, the district court did hold an evidentiary hearing, which is relevant to show here that the state itself did not take the opportunity to dispute the facts or to challenge the evidence.

[00:41:31] Speaker 04:
Contrary to what the state says in its PFR, trial counsel was questioned.

[00:41:36] Speaker 04:
The CDC report in which the CDC official called the jail and was told that Mr. Wade Law had programmed well and had no behavior problems, that was placed before trial counsel during the evidentiary hearing.

[00:41:52] Speaker 04:
And he was questioned, and he admitted that he knew about this there and did not follow up.

[00:41:58] Speaker 04:
The state did not cross-examine us to that.

[00:42:02] Speaker 04:
The state, with regard to Mr. Wade Law's declaration, which laid out all the facts that showed, that demonstrated his good behavior in jail, with regard to that declaration, the state neither subpoenaed him in order to cross-examine him.

[00:42:22] Speaker 04:
In fact, it goes further in that Wade Law's counsel attempted to subpoena him at testificandum, and the state opposed that motion.

[00:42:32] Speaker 04:
Um, so the state never before, during or after that hearing questioned the competency of any of the evidence supporting that subclaim.

[00:42:41] Speaker 04:
So basically the state has waited until the federal appeal to demand this evidence in a different form.

[00:42:49] Speaker 04:
And then finally, the fourth point was, I think it's fairly clear that there's no requirement under Supreme court law or any other clearly established federal law for two separate steps in analysis.

[00:43:00] Speaker 04:
And France v. Hazy is the best support for that, in which the court states, a holding on habeas review that a state error meets the 2254D standard will often simultaneously constitute a holding that the 2254A or 2241 requirement is satisfied as well.

[00:43:23] Speaker 04:
So no second inquiry will be necessary.

[00:43:26] Speaker 04:
Thus, both the district court and this court correctly stated and applied the law.

[00:43:30] Speaker 04:
Um, with regard to the separate claim of the state's presentation, not only of contradictory theories in the trials of both Mr. Waidlaw and Mr. Sakarias, it goes beyond that.

[00:43:50] Speaker 04:
The state pretty clearly presented false evidence in Mr. Waidlaw's, um, trial in order to

[00:44:00] Speaker 01:
Just to be clear, this is your guilt phase due process claim that you're talking about now?

[00:44:08] Speaker 04:
It's penalty phase.

[00:44:09] Speaker 04:
And the guilt phase one has to do with the confession, the Edwards-Innes claim.

[00:44:17] Speaker 04:
Here, basically, the

[00:44:22] Speaker 04:
the presentation of the contradictory theories we presented as a penalty phase claim.

[00:44:29] Speaker 04:
And this court, in its initial opinion, did not reach a finding on that because it had granted relief.

[00:44:36] Speaker 05:
Before you leave the penalty phase IAC claim for failure to introduce mitigating evidence, could you go to Strickland Prong to

[00:44:48] Speaker 04:
The prejudice?

[00:44:49] Speaker 04:
Yes.

[00:44:51] Speaker 04:
Well, I think this court itself, in its opinion, did a good job of describing what the evidence and mitigation should have been.

[00:44:58] Speaker 05:
I didn't ask a good question.

[00:45:03] Speaker 05:
I'm asking you to explain to me why you think the California Supreme Court's decision on prejudice was unreasonable.

[00:45:13] Speaker 05:
Why would this mitigating evidence have made a difference?

[00:45:15] Speaker 04:
I think the major factor here is the length of the jury deliberations.

[00:45:22] Speaker 04:
Nine days is ... I'm not familiar with too many other cases where the jury deliberates for nine whole days and declares a deadlock twice.

[00:45:32] Speaker 04:
I think that shows a very real equipoise and that it could easily have been brought back in the other direction.

[00:45:42] Speaker 04:
weighed against that, balanced against that, is only one afternoon of penalty phase that included jury instructions.

[00:45:50] Speaker 05:
I think they deliberated for four days in the penalty phase.

[00:45:54] Speaker 04:
No, four days in the guilt phase.

[00:45:55] Speaker 05:
I'm misspoken.

[00:45:58] Speaker 05:
We just clarified a minute ago.

[00:46:01] Speaker 05:
Four days in the guilt phase and it was the morning of day nine in the penalty phase, right?

[00:46:07] Speaker 05:
So I'm looking at Strickland-Prong, too, prejudice.

[00:46:10] Speaker 05:
And you've just told me that you think that the strongest evidence there is, indication that there is, that the failure to introduce mitigating evidence might have mattered is that they deliberated a long time.

[00:46:20] Speaker 00:
Yes.

[00:46:21] Speaker 00:
I think she was saying, just to clarify, at least I understood.

[00:46:24] Speaker 00:
Oh.

[00:46:25] Speaker 00:
What she was saying was that there was only one afternoon of penalty phase.

[00:46:31] Speaker 00:
Evidence.

[00:46:32] Speaker 00:
evidence that just a penalty phase hearing, just to clarify, I don't know if that's what you were saying.

[00:46:39] Speaker 00:
I think that was.

[00:46:40] Speaker 05:
You're correct.

[00:46:41] Speaker 05:
I misunderstood.

[00:46:42] Speaker 05:
Thank you, Judge Woloff.

[00:46:43] Speaker 05:
Yes, it was a very short presentation.

[00:46:45] Speaker 03:
Yes.

[00:46:46] Speaker 05:
Okay.

[00:46:48] Speaker 05:
But I'm concerned that there was also a very lengthy deliberation after they heard his recorded confession in the guilt phase.

[00:47:01] Speaker 05:
That seems to tell me that this was, to the extent we can know what juries are doing behind closed doors, which is always a little bit like reading a crystal ball.

[00:47:08] Speaker 05:
This is a very deliberative jury.

[00:47:12] Speaker 04:
It was a deliberative jury, but that's the jury's job to deliberate and to decide, and it clearly did take its duty seriously.

[00:47:24] Speaker 01:
Um, so I mean are there any I'm not aware of any but maybe Maybe are you aware of any cases?

[00:47:31] Speaker 01:
that say that at Strickland prong to We can draw an inference from a very short jury deliberation that the Putative error by council must not have made a difference because you know, look the jury decided really fast I can point and I think this is in our briefing to um

[00:47:54] Speaker 04:
In its briefing, the state had cited several California cases.

[00:47:58] Speaker 04:
So it's not presidential here, but he cited several California cases that kind of weighed against the length of jury deliberations.

[00:48:07] Speaker 04:
And we pointed out in our briefing that in each of those cases, basically the argument had been made, as you stated, that a short deliberation shows lack of prejudice and the California courts were finding against that.

[00:48:22] Speaker 01:
Okay, so, I mean, I guess doesn't that undermine your argument?

[00:48:26] Speaker 01:
Because if a long deliberation should cause us to infer that this evidence must have made a difference, it would seem that a short deliberation should lead us to conclude that evidence wouldn't have made a difference.

[00:48:39] Speaker 01:
And if that is not an inference that is drawn under Strickland on that side, why should we draw it here?

[00:48:46] Speaker 04:
I am not aware of those cases, but I am aware of a number of cases that do discuss the length of deliberations as showing prejudice within this circuit.

[00:48:57] Speaker 04:
And those are within the briefing.

[00:49:00] Speaker 04:
And they are very clear.

[00:49:01] Speaker 04:
I mean, there are cases that show three days of deliberation show prejudice, four days of deliberation show prejudice.

[00:49:07] Speaker 04:
There's one, I think, that says two days of deliberation.

[00:49:10] Speaker 01:
So we can look at the length of the deliberation when it helps you, but not when it hurts.

[00:49:16] Speaker 04:
Oh, I'm certainly not going to argue that.

[00:49:19] Speaker 04:
I mean, it's not just the length of deliberation.

[00:49:23] Speaker 04:
It's also the fact of two explicitly stated deadlocks in which 10, at the second one, the later one, 10 of the jurors said there was no probability they could reach a unanimous verdict.

[00:49:36] Speaker 04:
So it goes beyond the length.

[00:49:37] Speaker 04:
It goes to the substance of the explanation for the length of the deliberations.

[00:49:43] Speaker 04:
So there is more than just the length.

[00:49:45] Speaker 04:
But also with regard to prejudice, not only has this court itself laid out what the story should have been, good behavior, lack of violence, abandonment.

[00:49:58] Speaker 01:
I'm sorry, lack of violence.

[00:50:00] Speaker 01:
I mean, this is the psychological profile that said that he was averse to violence.

[00:50:04] Speaker 04:
Yes.

[00:50:05] Speaker 01:
And that would have been presented to a jury that had just determined that he hacked a woman to death with an axe.

[00:50:10] Speaker 04:
I think, well, there's a big difference between

[00:50:14] Speaker 04:
somebody who is violent throughout his life.

[00:50:16] Speaker 04:
Somebody, for example, like Zacharias, who confessed to the police that he killed somebody else who had committed all sorts of violence, and somebody like Wade Law, who's generally a follower averse to violence, averse to confrontation, and finds himself in a situation with Mr. Zacharias, where there is a singular, unique explosion of violence.

[00:50:41] Speaker 04:
nothing before, and as shown by the good jail behavior, evidence nothing after.

[00:50:45] Speaker 04:
I think a juror is going to weigh that picture differently from the picture that was being painted by the DA of Wade Law as always being violent, always being dangerous.

[00:51:00] Speaker 05:
Can I ask you to discuss what we should make of the California Supreme Court's decision in which it

[00:51:10] Speaker 05:
considered the impact of the state's decision to present disparate theories between the two cases.

[00:51:18] Speaker 05:
I think that we touched on this a minute ago.

[00:51:20] Speaker 05:
The California Supreme Court did not decide that that was prejudicial as to Mr. Wade Law, in part because they thought there was evidence that he was the leader and directed Zacharias in this crime.

[00:51:33] Speaker 05:
As you know, I know you're very, very familiar with the record, but I'm distracted by your comments now.

[00:51:40] Speaker 04:
Yes, let me pull up my notes specifically on that, because I want to point out first that in making those findings a fact, the California Supreme Court was usurping the role of the jury, as has been found by Ring and Shu.

[00:52:03] Speaker 04:
the other case that is very important.

[00:52:06] Speaker 05:
I think it was important and I am absolutely paraphrasing so correct me but they were considering that Mr. Wade law had agreed that he was the you know inflicted the first blow at a minimum right and that he after she was down that he directed his co-defendant to stab her and she was repeatedly stabbed at that point so I think there this is my loose paraphrase

[00:52:31] Speaker 05:
is that their conclusion was that Mr. Wade-Law had been directing the events on the day of the crime.

[00:52:37] Speaker 05:
Please explain to me why I have that wrong.

[00:52:40] Speaker 04:
I don't remember in his confession his stating he directed Mr. Sakharais to stab.

[00:52:46] Speaker 05:
I'm talking about the California.

[00:52:47] Speaker 05:
I didn't suggest that he confessed to that, that the California Supreme Court reached that conclusion, I think, in its opinion.

[00:52:53] Speaker 04:
Well, then that's a fact that's not in evidence.

[00:52:55] Speaker 04:
And again, that constitutes a usurpation.

[00:52:59] Speaker 04:
of the jury's role here.

[00:53:01] Speaker 05:
So I think that what they were relying on, this is a long way of getting there, I think what the California Supreme Court was relying on was Mr. Sakarias' confession, which was not admitted at Wade Law's trial, right?

[00:53:15] Speaker 05:
Correct.

[00:53:16] Speaker 05:
So the jury would not have known about that, but they would have Mr. Wade Law's confession.

[00:53:28] Speaker 05:
They heard that, the tape-recorded confession.

[00:53:31] Speaker 04:
Right, but the DA was taking full advantage of the jury's lack of knowledge of Mr. Sakarias' confession by telling them a fact which the DA knew to be incorrect.

[00:53:44] Speaker 04:
Mr. Sakarias had confessed to being the one who used the sharp portion of the hatchet against Ms.

[00:53:52] Speaker 04:
Piersil's head.

[00:53:56] Speaker 04:
He.

[00:53:57] Speaker 05:
I'm just struggling to.

[00:53:59] Speaker 05:
This is I'm struggling to understand your response to Judge Miller's question, which is you're stressing that there was evidence that he was nonviolent.

[00:54:10] Speaker 05:
Right.

[00:54:10] Speaker 05:
And we're talking about prejudice.

[00:54:12] Speaker 05:
Strickland pronged to.

[00:54:14] Speaker 05:
But his confession includes him taking responsibility for using the sharp end of the axe or hatchet blunt end of the axe of the hatchet.

[00:54:23] Speaker 04:
That's all he confesses to, Mr. Wade-Law.

[00:54:26] Speaker 04:
It's the initial blow, right?

[00:54:27] Speaker 04:
The initial blow, one blow.

[00:54:29] Speaker 04:
That's all he confessed to.

[00:54:31] Speaker 05:
You said it was a sudden crime.

[00:54:33] Speaker 05:
It just seemed to be a, I don't know how to say sudden.

[00:54:38] Speaker 05:
There's significant evidence of premeditation, of breaking into the cabin, getting the axe, coming in, lying in wait in the house.

[00:54:45] Speaker 05:
Is that an unfair characterization?

[00:54:46] Speaker 04:
It can certainly, and trial counsel should have argued it differently.

[00:54:51] Speaker 04:
He should have argued that

[00:54:53] Speaker 04:
the hatchet could have served to break into the house.

[00:54:58] Speaker 04:
And there is a lot of evidence that should have been presented that Mr. Wade Law felt he was owed the car, the Alfa Romeo, that the Pearsills had promised him in exchange for his work.

[00:55:09] Speaker 05:
But there was no evidence that he was owed the jewelry or the credit cards.

[00:55:13] Speaker 04:
No, but that he felt, and that they had promised it.

[00:55:15] Speaker 04:
I think even Mr. Pearsills agreed that they had told him at one point that they would give him that.

[00:55:21] Speaker 05:
Okay, so here's my question because I'm troubled, very troubled by Strickland-Prong, too, and I'm going to give you every opportunity.

[00:55:27] Speaker 05:
What is your strongest Strickland-Prong, too, prejudice argument, please?

[00:55:31] Speaker 04:
It has to do with domination.

[00:55:32] Speaker 04:
It has to do, in addition to, you know, the story of everything he went through, it has to do with the fact that Sakarias could have been shown to have been the dominant personality, the violent personality, not Mr. Wade Law.

[00:55:47] Speaker 04:
None of that was ever shown to the jury, and at least one juror

[00:55:51] Speaker 04:
in this very, very balanced jury would have gone the other way pretty clearly if they had not thought that Mr. Wade Law was the one wielding the sharp end of the hatchet against Ms.

[00:56:05] Speaker 04:
Pierce Hill's head, as the DA repeatedly stated, knowing that was false.

[00:56:16] Speaker 04:
Does that help?

[00:56:18] Speaker 05:
I appreciate your argument very much, but let me just make sure that I've, Judge Miller, anything further?

[00:56:23] Speaker 05:
Oh, I think Judge Wardlaw.

[00:56:24] Speaker 05:
Judge Wardlaw is trying to, Judge Wardlaw, I think we're, are you muted?

[00:56:28] Speaker 00:
I'm muted.

[00:56:28] Speaker 00:
So what I was saying is that the very argument that the defense counsel is making today, that state counsel made the same argument today that the sharp edge was used by Mr. Wade Law.

[00:56:48] Speaker 00:
And that was not in fact true.

[00:56:50] Speaker 00:
And we've got the same argument today that we got, you know, that the trial jurors heard when they were weighing whether Mr. Wade Laws should live or die.

[00:57:08] Speaker 05:
So the point being that confession, which the jury heard,

[00:57:15] Speaker 05:
indicates, I think, that Mr. Wade-Lock confessed to being the initial, striking the initial blow, but you want to underscore that there's this distinction between the sharp edge and the blunt edge, and what he really confessed to was, admitted that it was the first blow, but not that it was the sharp edge.

[00:57:33] Speaker 04:
Is that a yes?

[00:57:35] Speaker 04:
Yes, and it's not just I who's underscoring that.

[00:57:38] Speaker 04:
More importantly, it was the DA who emphasized it repeatedly.

[00:57:42] Speaker 04:
He's the one who kept painting the picture of Mr. Wade Law using the sharp end to chop off the top of the skull, leaving blah, blah, blah, blah.

[00:57:50] Speaker 04:
And he said, even if Mr. Wade Law confessed only to using the blunt end, don't believe him, because again, he was taking advantage of the image of Mr. Wade Law as a liar, don't believe him because why would he have

[00:58:04] Speaker 04:
you know, switched out the hatchet, whereas he knew that Mr. Sakarias had explained the knife he was using broke, and so he took the hatchet and used a sharp end against her head.

[00:58:15] Speaker 05:
Right, and so the California Supreme Court found that switch, in theory, was not prejudicial as to Mr. Wade-Long.

[00:58:22] Speaker 05:
So what's your best response, please?

[00:58:25] Speaker 04:
That was erroneous, unreasonable, and clearly wrong.

[00:58:32] Speaker 05:
Judge Widley, I'm not sure if you were trying to ask a question earlier when you were muted, or I want to make sure you get all your questions out.

[00:58:37] Speaker 00:
I know.

[00:58:38] Speaker 00:
I'm fine.

[00:58:38] Speaker 00:
I'm fine.

[00:58:39] Speaker 00:
But wasn't that in the, wasn't that a claim in the guilt phase argument?

[00:58:48] Speaker 00:
The guilt phase appeal?

[00:58:51] Speaker 04:
We presented it as an alternative on penalty.

[00:58:55] Speaker 00:
Okay.

[00:58:57] Speaker 04:
And I also want to remind the court that

[00:59:01] Speaker 04:
The California Supreme Court did not make a finding regarding the actual due process violation on that claim.

[00:59:11] Speaker 04:
But the fact that they found a due process violation as to Mr. Sakarias kind of shows that they would have found it as to Mr. Wade Law, too.

[00:59:18] Speaker 04:
It was only on prejudice, where based on what must have been a finding of fact,

[00:59:26] Speaker 04:
again, that should have been put in front of the jury, but never was.

[00:59:30] Speaker 04:
I mean, the facts of Mr. Sakarias' confession were put in front of Mr. Sakarias' jury, and they clearly found it compelling because they gave him the death penalty.

[00:59:40] Speaker 04:
But those facts apparently were not compelling to the California Supreme Court in the same way.

[00:59:47] Speaker 04:
So the California Supreme Court took the jury function and found differently than an actual jury had done.

[00:59:57] Speaker 04:
anything further you're over your time but we appreciate your argument very much thank you thank you and just to be clear I don't get another rebuttal right right

[01:00:16] Speaker 02:
Thank you, Your Honor.

[01:00:17] Speaker 02:
So if I could just clear up three things.

[01:00:20] Speaker 02:
First, there were two attacks with the axe, and Wade Law's confession was as to the first one.

[01:00:28] Speaker 02:
And as was demonstrated by the evidence, when the victim entered her house, she was not only bludgeoned, but also struck with the sharp edge.

[01:00:38] Speaker 02:
After she had died, she was then dragged to another room where two non-hemorrhagic blows were inflicted.

[01:00:45] Speaker 05:
There's evidence that she had suffered trauma to her neck consistent with being strangled.

[01:00:50] Speaker 05:
Is there evidence or was there evidence temporally to indicate whether she was strangled first before the hit by the axe?

[01:01:01] Speaker 02:
I'm unsure.

[01:01:02] Speaker 02:
The damage to her throat also was due to the blunt force of the blunt side of the hatchet.

[01:01:11] Speaker 05:
You think all of the damage to the throat was due to the blunt side of the hatchet?

[01:01:15] Speaker 02:
Well, it was testified from the coroner that the hatchet was used to shatter her larynx.

[01:01:21] Speaker 05:
That's a different question.

[01:01:23] Speaker 05:
Is there no evidence of strangulation?

[01:01:28] Speaker 05:
That her neck was grasped?

[01:01:29] Speaker 02:
Yes, I believe there was.

[01:01:31] Speaker 02:
I believe there was.

[01:01:32] Speaker 02:
All right.

[01:01:33] Speaker 05:
So you were saying there were two axe attacks.

[01:01:35] Speaker 02:
Correct.

[01:01:36] Speaker 02:
And Wade Luck confessed to being the perpetrator of the first axe attack, which, again, included that initial blow with the sharp edge after she had been bludgeoned.

[01:01:47] Speaker 02:
So as the California Supreme Court found, the attribution of the two non-hemorrhagic blows later, which were perpetrated by the co-defendant, would have been harmless.

[01:02:00] Speaker 02:
The other thing I wanted to clear up is the notion that the evidence that is now being put forth could have been harmonized with this idea that he was dominated by Sicarius.

[01:02:15] Speaker 02:
Their expert conclusions, and this is by both Pork and Roumette, is very clear, and that is that

[01:02:21] Speaker 02:
He displayed Wade law displayed a strong will to succeed and that he had developed a reputation among teachers and coaches for willpower and a desire to fight for justice.

[01:02:33] Speaker 02:
So it very well would have conflicted with what defense counsel did present at trial.

[01:02:42] Speaker 02:
And then finally, the declaration of trial counsel, it does say at paragraph four that he was aware there were no disciplinary proceedings against Wade Law, but it does not say that he did not conduct any further investigation into jail behavior in the subsequent

[01:03:02] Speaker 02:
or in the later paragraph, paragraph five, it states that he didn't conduct any mitigation investigation beyond what was presented at guilt phase.

[01:03:13] Speaker 02:
But again, that's not only belied by what came out at the federal evidentiary hearing, but it also is not, as was suggested, specifically referencing jail behavior.

[01:03:25] Speaker 05:
We had a who's on first conversation a minute ago about, it was probably my fault, about a defense counsel's declaration.

[01:03:31] Speaker 05:
I thought you were referring to some of the, another declaration that was submitted in the federal evidentiary hearing and trying to make a point about that, but I think I was wrong and you were just talking about defense counsel's declaration?

[01:03:40] Speaker 02:
Correct.

[01:03:41] Speaker 05:
Okay.

[01:03:41] Speaker 02:
Correct.

[01:03:42] Speaker 05:
I just misunderstood you.

[01:03:43] Speaker 05:
Okay.

[01:03:50] Speaker 02:
And one thing I also would like to say is that

[01:03:53] Speaker 02:
As far as the deliberations are concerned, it can and is argued often that a short deliberation also demonstrates prejudice.

[01:04:04] Speaker 02:
Just this week, in another capital case, an advocate argued that very point, and that was in Dennis.

[01:04:11] Speaker 02:
So the lengthy deliberations

[01:04:14] Speaker 02:
simply show a conscientious jury and the fact that they were struggling over something.

[01:04:22] Speaker 02:
What that is, we can only speculate, but what we know is that council had presented a compelling argument with specific themes and the replacement of those themes would have entirely changed the argument.

[01:04:37] Speaker 02:
Thank you.

[01:04:39] Speaker 05:
No further questions.

[01:04:41] Speaker 05:
Judge Wardlaw?

[01:04:42] Speaker 05:
No.

[01:04:43] Speaker 02:
All right.

[01:04:44] Speaker 05:
Thank you both for your careful advocacy.

[01:04:46] Speaker 05:
We appreciate it very much.

[01:04:48] Speaker 05:
We will stand in recess, take this case under advisement.

[01:04:52] Speaker 00:
All rise.

[01:05:01] Speaker 04:
This court for this session stands adjourned.