[00:00:04] Speaker 02: James Thompson appearing on behalf of William Michael Dennis, and I'm ready to begin the argument as the court directed. [00:00:13] Speaker 02: EDPA applies to this case under Montiel, but Mr. Dennis prevails under EDPA. [00:00:20] Speaker 02: Whether you look at the California Supreme Court's denial as a failure to demonstrate a Strickland violation [00:00:27] Speaker 02: or whether you look at it as a failure to state a prima facie case, Mr. Dennis prevails under either factor or either avenue. [00:00:38] Speaker 02: Before I begin the actual argument, I wanted to bring up something that I think is significant, because it plays into both prejudice and performance. [00:00:47] Speaker 02: And that is that this case, compared to so many other capital cases, is really quite unique. [00:00:54] Speaker 02: And it's unique in five ways. [00:00:56] Speaker 02: One is that Mr. Dennis had no felony convictions. [00:01:01] Speaker 02: Mr. Dennis had no misdemeanor convictions. [00:01:04] Speaker 02: Mr. Dennis had no unadjudicated conduct that could have come in. [00:01:09] Speaker 02: In fact, Mr. Dennis had never been arrested before this crime. [00:01:13] Speaker 02: If he were in the federal system, his criminal history points would have been zero. [00:01:18] Speaker 02: It would have been in category one, but he nevertheless would have been a zero. [00:01:22] Speaker 02: Second is that the motive for the crime was driven by the tragic drowning of his five-year-old son, three-year-old son Paul. [00:01:34] Speaker 02: There was not a robbery as a motive. [00:01:36] Speaker 02: There's no theft. [00:01:37] Speaker 02: There's no sexual offense. [00:01:39] Speaker 02: There's not greed. [00:01:40] Speaker 02: There's not any serial killings. [00:01:42] Speaker 02: There's not any kind of criminal motive other than the death of his child and his belief that his wife was responsible, former wife was responsible for it. [00:01:53] Speaker 02: In his, at that time, very deluded mind, his wife had to be responsible. [00:02:00] Speaker 02: She didn't dive into the water to save the child. [00:02:04] Speaker 02: She went to a neighbor's house instead. [00:02:07] Speaker 02: She wasn't found negligent by the civil jury in the wrongful death action, which translated in Mr. Dennis's mind is that she must have been intentional interactions instead of negligent. [00:02:21] Speaker 02: The co-workers' comments at some point in time to him about maybe she wanted Paul dead. [00:02:29] Speaker 02: Those were the triggers that motivated and led to this tragedy. [00:02:35] Speaker 02: Now, there was an underlying series of mental maladies that Mr. Dennis was undergoing. [00:02:42] Speaker 02: But it was that point in time where the delusional disorder as later diagnosed by Dr. Woods and then concurred by Dr. Benson who was the trial. [00:02:54] Speaker 04: Twenty years later. [00:02:57] Speaker 02: Excuse me? [00:02:57] Speaker 04: Twenty years later. [00:02:59] Speaker 02: Yes. [00:03:00] Speaker 02: Twenty years later. [00:03:01] Speaker 04: Twenty years later was when [00:03:05] Speaker 04: The habeas counsel was able to present evidence that people claimed that your client could have put forward, for example, a not guilty by reason of insanity defense 20 years before. [00:03:20] Speaker 02: Well, I think the habeas petition wasn't filed that long ago. [00:03:25] Speaker 02: The first petition has some of these claims in it. [00:03:28] Speaker 02: And the reason it's late is because trial counsel was ineffective. [00:03:32] Speaker 02: Had trial counsel provided the documents and all the other materials to Dr. Benson, had he listened to Dr. Garten, had he listened to Dr. Caldwell, had he listened to Dr. Stevenson or Dr. Erdberg, or any of the other factors that were involved in the case, and those opinions [00:03:49] Speaker 02: and had he provided records? [00:03:52] Speaker 04: Well, Counselor, Mr. Gonzalez provided a huge number of records, but I have a question for you on this. [00:04:00] Speaker 04: I apologize if I get the ER numbers wrong. [00:04:03] Speaker 04: I think it's ER 97, but it's part of the 12-19-17 order. [00:04:10] Speaker 04: As noted here, none of the reports [00:04:13] Speaker 04: or correspondence submitted to trial counsel by his experts, including Drs. [00:04:18] Speaker 04: French, Stevenson, Garten, Benson, made a finding that Petitioner was insane at the time of the crimes, despite trial counsel's correspondence suggesting a potential insanity defense. [00:04:29] Speaker 04: So can you point me to anything that would indicate that what the district court said there was incorrect in any regard? [00:04:38] Speaker 02: Yes, because the records and the information that was provided to Dr. Benson and to others was not the information that was needed for him to come up with the diagnosis of delusional disorder. [00:04:52] Speaker 04: Yeah, but isn't that because it didn't exist? [00:04:55] Speaker 02: No, it did exist. [00:04:56] Speaker 04: Well, I'm looking here, for example, at Mr. Gonzalez's memo to file, which lists the files given to Drs. [00:05:05] Speaker 04: Garten, Stevenson, and Benson. [00:05:08] Speaker 04: and it looks to me like it's an enormous number of documents, including the C-A-L-J-I-C instructions for murder, insanity, and diminished actuality. [00:05:22] Speaker 04: And his correspondence to them was saying, you know, I need your help seeing if we can come up with [00:05:29] Speaker 04: a defense based on his mental state. [00:05:33] Speaker 04: So it looks to me like Mr. Gonzalez did a huge amount in this case, and I don't see what the district court got wrong here in suggesting that he wasn't under an obligation to just keep going from doctor to doctor until he was able to find one who said that your client was insane. [00:05:51] Speaker 02: But he didn't need to go to doctor to doctor. [00:05:53] Speaker 02: All he needed to do was go to the doctors that he talked to. [00:05:56] Speaker 02: Because each one of those doctors, Dr. Garten, Dr. Caldwell, Dr. Stevenson, Dr. French, Dr. Herbert, I'm not sure about Dr. Herbert, all of those doctors testified at the evidentiary hearing [00:06:08] Speaker 02: in both by direct testimony and by even by cross-examination, that the information that post-conviction counsel had given them was exactly the information that they needed in order to render opinions. [00:06:21] Speaker 04: Well, that's not what the district court said and that's not what I see in the evidence. [00:06:25] Speaker 04: The district court said, yeah, that's what they said 20 years later, but the district court looked at what counsel did give them [00:06:31] Speaker 04: and didn't see what it was that should have moved the needle with them from being asked to diagnose a mental state not being able to do it. [00:06:43] Speaker 04: And it looked to me like Mr. Gonzalez gave them an enormous amount of material. [00:06:50] Speaker 02: Whether he gave him an enormous amount of material or not is not the point. [00:06:55] Speaker 02: The point is that when they were given the full range of material that we gave them in post-conviction, they all came back with, and Dr. Benson specifically said, my diagnosis would not have been depressive disorder solely. [00:07:09] Speaker 02: It would have been delusional disorder based upon the information that we gave him, which was a complete social history, was a complete set of records. [00:07:18] Speaker 04: As opposed to the social history that the PD's office developed. [00:07:22] Speaker 02: 12 pages. [00:07:24] Speaker 02: A 12-page social history. [00:07:26] Speaker 04: And how many witness interviews? [00:07:29] Speaker 02: I don't know the exact number. [00:07:30] Speaker 02: I think we ended up putting in evidence. [00:07:32] Speaker 04: No, I mean that Mr. Gonzalez furnished them. [00:07:35] Speaker 04: Scores of witness interviews. [00:07:36] Speaker 02: No, it was not scores. [00:07:38] Speaker 02: And I don't know the exact count, but it was not. [00:07:40] Speaker 00: Let me ask you specifically with respect to [00:07:45] Speaker 00: Dr. Woods, he lists 49 sources of information that he looked at. [00:07:53] Speaker 00: Which of those existed at the time and Dr. Benson did not have access to? [00:08:03] Speaker 02: I don't want to give you a precise count. [00:08:06] Speaker 02: I don't recall there being anything that was provided to the experts that wasn't available had they done the investigation. [00:08:16] Speaker 02: In other words, there wasn't some sort of thing that we came up with that was new and different than what was already available. [00:08:22] Speaker 00: The problem is we're kind of talking up here as opposed to specifics. [00:08:28] Speaker 00: Following on Judge Bennett's questioning, it does seem that there is an ultimate minor variation in conclusion here, but the question is where did the trial attorney go wrong, consulted one, two, three, four, at least five different sources, and they just didn't [00:08:58] Speaker 00: quite reached the hope or the decision that you might have hoped for. [00:09:02] Speaker 00: So I'm trying—you have to kind of, it seems to me, distinguish between a now 20 years later view and what the attorney did back then. [00:09:13] Speaker 00: They're two separate things. [00:09:14] Speaker 00: So what is it that Dr. Benson and others didn't have access to that they should have? [00:09:23] Speaker 02: I don't have the excerpts of record or I don't have the specific declarations. [00:09:28] Speaker 00: You don't need to give me the excerpts of record because I'm happy to go back and even find those. [00:09:33] Speaker 00: But tell me substantively what was missing. [00:09:36] Speaker 02: Well, in part was the social history and all of the development by all of those witnesses of what Michael Dennis was going through as a young youngster and what it is that he went through in young adulthood and then got to the point where he was working as he was working. [00:09:54] Speaker 02: So there's the complete. [00:09:55] Speaker 00: But all of that social history doesn't seem to me that it's going to change anything if we would have to get into prejudice, for example. [00:10:03] Speaker 00: I mean, that's where I'm having some trouble understanding how that would have changed the diagnosis or would have changed what happened in terms of what the attorney did. [00:10:18] Speaker 02: I'm glad to answer the prejudiced question. [00:10:20] Speaker 00: I mean, Dr. Benson saw him, what, five times? [00:10:23] Speaker 02: Yes, and Dr. Benson testified when he was given the information that we gave him. [00:10:29] Speaker 02: whatever time period was later, but was available at the time that he testified, and he testified to this at the evidentiary hearing, that that changed his diagnosis from depression to a delusional disorder. [00:10:44] Speaker 04: Yeah, but I think what we're having trouble with, and I think Judge McKeown and I are both having trouble with this, is we looked at what Dr. Benson testified to. [00:10:55] Speaker 04: We looked at what the district court found. [00:10:57] Speaker 04: We looked at the materials. [00:10:59] Speaker 04: that he was given. [00:11:00] Speaker 04: We understand what he said, but the district court said in some ways his testimony was different than what the contemporaneous information showed, that he never said he needed anything more, that he wasn't simply asked to opine on whether your client was being truthful. [00:11:20] Speaker 04: So I think what Judge McKeown is asking is, and I would want to know too, give us some examples of what was so different in kind or nature or quality that it really would have moved the needle here because it looks like that there was evidence that the doctor had [00:11:40] Speaker 04: that your client had a speech impediment and a hearing problem, that he was a loner. [00:11:46] Speaker 04: There was a lot of evidence about how distressed he was at his son's death and how he blamed his ex-wife. [00:11:55] Speaker 04: And it just looks like this other evidence is just more of the same, but not needle-moving stuff. [00:12:03] Speaker 04: And I'm having trouble seeing what it is that other than, you know, Dr. Benson's conclusions of what he would have done 20 years before, what the actual evidence is that's new that they didn't have that would have actually moved the needle. [00:12:18] Speaker 02: The only thing I can say at this point, I mean, I'm glad to look at the excerpts and provide a citation to those, but it's in the testimony of Dr. Benson. [00:12:26] Speaker 04: But I don't, like Judge McKeown, I don't need a citation. [00:12:28] Speaker 04: I need a description. [00:12:30] Speaker 04: I mean, maybe there could have been some more evidence about his hearing impairment. [00:12:34] Speaker 04: Maybe there could have been some more evidence about social isolation. [00:12:38] Speaker 04: Maybe there could have been some more evidence about how distressed he was, although there was a lot. [00:12:45] Speaker 04: But I just don't see how that gets you where you need to go here, even if we're looking at this case de novo. [00:12:51] Speaker 02: Even if you were to say that the evidence that we provided to the experts and the experts testified about, [00:12:56] Speaker 02: was of the same kind, and I think it's different, but if you were to say it, of the same kind, it is significant enough that each one of the doctors the trial counsel retained had a difference of opinion and informed their opinion, like Dr. Stevenson and Dr. Garten and Dr. Erberg and others who did the MMPI testing and did the Rorschach testing. [00:13:18] Speaker 02: all had indications of paranoia and other items that would have fit a delusional disorder diagnosis. [00:13:27] Speaker 02: So when they got the full set of information, which was social history, mental health, background information. [00:13:36] Speaker 05: I want to stop you right there, because it's really the third time you said that it was all available, describing this full set that you've identified. [00:13:49] Speaker 05: And my problem is trying to figure out what you mean by it was all available. [00:13:54] Speaker 05: It may be the underlying facts were there, but you've already referenced the social history, which you denigrated as being only 12 pages long, wasn't the same as the social history developed and presented to the experts as part of the post-conviction relief effort later. [00:14:12] Speaker 05: Well, we have to strip out hindsight. [00:14:14] Speaker 05: And so I'm trying to figure out what exactly when you say it was available, [00:14:19] Speaker 05: You mean by that? [00:14:20] Speaker 05: Do you mean the underlying facts were there for somebody else to develop it? [00:14:24] Speaker 05: Yes. [00:14:24] Speaker 05: Well, isn't that a problem? [00:14:26] Speaker 02: Yes, it is, because trial counsel didn't do his job. [00:14:29] Speaker 05: Isn't that a problem for us? [00:14:30] Speaker 05: No, it's not. [00:14:30] Speaker 05: We've got to strip out the hindsight and what should have told trial counsel that the efforts that he undertook, which at least in terms of number of contacts and providing materials and so forth, appear extensive, [00:14:45] Speaker 05: What should have told trial counsel it wasn't extensive enough because you hadn't come up with whatever was going to be identified many years later as potentially the key? [00:14:57] Speaker 05: The fact that somebody hasn't come up with a key doesn't mean that the performance of that counsel is deficient. [00:15:07] Speaker 05: So what made the fact that it could have been developed by somebody else [00:15:13] Speaker 05: enough to identify what counsel did at the time is deficient. [00:15:17] Speaker 02: Trial counsel interviewed the persons that were interviewed by post-conviction counsel. [00:15:22] Speaker 02: He would have got the same information that post-conviction counsel. [00:15:26] Speaker 02: That information was readily available at the time trial counsel had the case. [00:15:31] Speaker 02: The best example perhaps of this is Strickland expert Thomas Nolan, who is a well-respected [00:15:37] Speaker 02: judge, a well-respected counsel in that area, testified at the federal hearing that Mr. Dennis' trial counsel failed to provide representation that satisfied the prevailing standard of care in 1988. [00:15:51] Speaker 02: Going back to the 1988-1989 guidelines, [00:15:55] Speaker 02: and the other criteria that were in place at that time. [00:15:59] Speaker 02: Because he didn't do the social history investigation, he didn't interview the witnesses for triggers of mental health and background and information. [00:16:07] Speaker 02: There wasn't like that you could go to a hospital and get records of Mr. Dennis's medical situation. [00:16:14] Speaker 02: He'd never been hospitalized. [00:16:15] Speaker 02: So it wasn't that. [00:16:17] Speaker 02: It had to be the core witnesses. [00:16:19] Speaker 02: It had to be those facts. [00:16:21] Speaker 02: Those facts were available by trial counsel's time. [00:16:25] Speaker 02: And instead of trial counsel pursuing a mental state defense that he set out in an early letter to the experts, instead of pursuing that, he had Dr. Benson interview Mr. Dennis for the purposes of determining whether or not he was telling the truth about the crime. [00:16:40] Speaker 04: Well, that's what Dr. Benson testified to, but that's not [00:16:43] Speaker 04: what the contemporaneous evidence showed. [00:16:47] Speaker 00: Well, I disagree. [00:16:48] Speaker 04: Well, I understand that. [00:16:50] Speaker 04: But I mean, I'm looking at the letters that Mr. Gonzalez wrote to Dr. Benson, several letters telling him what he was hoping he could do on the mental defense. [00:17:00] Speaker 04: And just Dr. Benson testifying a trial that the materials he had been given were adequate. [00:17:07] Speaker 04: And I understand Dr. Benson is saying this 20 years later, but when I look at the contemporaneous materials, I don't see it. [00:17:15] Speaker 02: Well, but Dr. Benson testified to it. [00:17:18] Speaker 00: What he testified to is not much. [00:17:21] Speaker 00: He said, I wasn't aware of the depth of the delusions and paranoia due to the limited materials. [00:17:28] Speaker 00: I mean, he certainly testified to delusional tendencies. [00:17:31] Speaker 00: He testified to paranoia. [00:17:33] Speaker 00: But he doesn't really tell us, in his view, what was missing. [00:17:38] Speaker 00: It's a pretty cursory [00:17:40] Speaker 00: conclusory affidavit that he now provides 20 years later. [00:17:44] Speaker 00: So had he said, this is what I was missing, or this was why I couldn't do that, [00:17:53] Speaker 00: it might have more traction, but I'm a little, you know, this is not unlike other affidavits we've seen 20 years later, because it doesn't tell you what was missing. [00:18:07] Speaker 02: But that was taken as the direct examination, as a method that the court imposed for the hearing. [00:18:13] Speaker 02: That was taken as direct. [00:18:15] Speaker 02: Look at the cross-examination, look at the redirect examination, and that does explain what we're up against here. [00:18:23] Speaker 02: But I want to go to prejudice for a second here. [00:18:26] Speaker 02: This is a person who has no record whatsoever. [00:18:29] Speaker 02: This is a person who had complete lack of aggravation save the crimes in this case. [00:18:35] Speaker 02: Horrible, horrible crimes. [00:18:37] Speaker 02: But almost all capital murders are horrible, horrific crimes. [00:18:42] Speaker 02: The jury came back with a second degree verdict on the unborn child. [00:18:46] Speaker 04: The jury was out four and a half hours on the penalty phase. [00:18:49] Speaker 02: That just goes and proves what I'm saying is trial counsel didn't do his job. [00:18:56] Speaker 04: I suppose theoretically that could be proof of what you're saying, but what the district court found was that the four-hour [00:19:04] Speaker 04: penalty phase deliberation. [00:19:06] Speaker 04: I believe the district court's words were it could be reasonably inferred that the jury didn't think it was close because of the horrible aggravating nature of the crimes and the district court didn't think that the extra evidence would have moved the needle. [00:19:20] Speaker 02: But the court could also have said that it was also proof of the fact that trial counsel didn't put on the case that was put on the post-conviction hearing. [00:19:29] Speaker 04: No, but the district court found that even if trial council had put on that case, the district court didn't think it would have moved the needle. [00:19:36] Speaker 04: Isn't that what the district court said? [00:19:38] Speaker 04: I know that if we don't find out for deference applies, we're applying de novo review, but isn't that what the district court did say? [00:19:47] Speaker 02: I would not take every one of those words and say I agree with that. [00:19:51] Speaker 02: I'm not saying that he didn't say that. [00:19:54] Speaker 02: I'm just saying I can't, without looking at that, I can't say yes or no. [00:19:58] Speaker 02: But it still goes to the fact that there is complete lack of aggravation, that even the aggravated crime was mitigated, and all the jury did not hear it. [00:20:06] Speaker 04: Sorry, how was the aggravated crime mitigated? [00:20:08] Speaker 02: Because of the second degree is the unborn child. [00:20:12] Speaker 02: And if any of this evidence, and the last thing is that the jury didn't hear it because defense counsel failed to ask about it, was he was a model inmate. [00:20:22] Speaker 04: Wasn't he in protective custody? [00:20:25] Speaker 02: Might have been in protective custody sometime, but still you can get, I've got plenty of clients who are in protective custody who get write-ups by CDCR. [00:20:33] Speaker 02: He did not have a write-up in that jail. [00:20:36] Speaker 02: So if you just- I may have missed a jump. [00:20:37] Speaker 05: What is it about the second degree conviction [00:20:41] Speaker 05: that you want us to draw from? [00:20:43] Speaker 02: I say that because of this. [00:20:46] Speaker 02: Had any of this, had all of the mitigating mental health evidence that we introduced at the evidentiary hearing, had that been presented to a jury, all that evidence could have gone to is had that jury make a determination [00:21:03] Speaker 02: that the death of the child was voluntary manslaughter and not second degree. [00:21:09] Speaker 04: Didn't the California courts say there is no such thing because a child, a fetus not born alive, that there is no manslaughter lesser because it's not a human being? [00:21:21] Speaker 02: Well, you know, the child, they could have presented a mental state defense that he did not have the intent as to the child, which would have reduced it. [00:21:28] Speaker 04: But didn't the California court say there was no such thing as a lesser or voluntary manslaughter for the fetus? [00:21:34] Speaker 02: But they wouldn't have had to have decided second degree. [00:21:38] Speaker 02: And if they hadn't decided second degree, then there would not have been a special circumstance. [00:21:43] Speaker 02: And if there wasn't a special circumstance, Mr. Dennis couldn't have been sentenced to death. [00:21:47] Speaker 02: He couldn't even have been sentenced to life without possibility of parole. [00:21:50] Speaker 04: So I have a question. [00:21:52] Speaker 04: One of the things that I think the district court found was if all this mental health evidence had theoretically been developed and offered as an NGI defense, that that would have opened the door or could have opened the door to the government rebuttal. [00:22:09] Speaker 04: So I have two questions on that. [00:22:11] Speaker 04: First of all, Mr. Gonzalez was available to you, including by a deposition, and he chose not to take a deposition, right? [00:22:21] Speaker 02: I think he was available to former counsel, yes. [00:22:24] Speaker 04: Okay. [00:22:24] Speaker 04: And so you never put on any evidence as to why Mr. Gonzalez did or didn't choose to go forward with an NGI defense, right? [00:22:35] Speaker 02: We did not have him testify. [00:22:37] Speaker 02: Okay. [00:22:38] Speaker 02: Nor did the state. [00:22:39] Speaker 04: Yeah. [00:22:40] Speaker 04: Right. [00:22:41] Speaker 04: And so another question. [00:22:42] Speaker 04: You're familiar with your client's ex-girlfriend Twyla? [00:22:47] Speaker 04: Yes. [00:22:48] Speaker 04: And Twila told the PD investigators that your client had told her that he knew Doreen was pregnant. [00:22:58] Speaker 02: Yeah, I remember that report. [00:23:01] Speaker 04: But he didn't tell that to the police when they interviewed, she didn't tell that to the police when they interviewed her. [00:23:07] Speaker 04: Couldn't one reason counsel have decided not to put on any of this stuff was because he was afraid that they would then re-interview Twyla and if she testified to the jury that her client told her shortly before the killings that he knew Doreen was pregnant and was real angry about it, that that could have [00:23:24] Speaker 04: basically taken away any chance that Mr. Gonzalez had on prevail about prevailing on anything? [00:23:32] Speaker 02: I don't think so. [00:23:34] Speaker 02: I mean, I don't think. [00:23:36] Speaker 04: It wouldn't have been devastating if Twyla took the stand or somebody quoted Twyla saying, shortly before the killings, which I knew once I heard about him, I knew he had done it, but shortly before the killings, he told me that Doreen was pregnant again and he was really mad about it. [00:23:54] Speaker 04: That wouldn't have been devastating evidence? [00:23:58] Speaker 02: It would have been more evidence in the picture of things, but it would have been still done in the time period of developing an insanity defense, so that whatever was going on with the delusional disorder that caused this to happen in the first place, the killing of Doreen, [00:24:16] Speaker 02: would not have been played out because there would have been an order of insanity. [00:24:21] Speaker 02: And opening the door to a speculative report that may or may not have been done that no one endorsed as saying that that's the reason. [00:24:29] Speaker 02: And defense counsel, petitioners counsel, were not under a duty to have counsel testify. [00:24:36] Speaker 02: I mean, the case law is clear on that, that we're not, that's not in our position. [00:24:40] Speaker 04: If the state had wanted to call... My comment was there just wasn't any evidence there on that. [00:24:46] Speaker 02: On what? [00:24:48] Speaker 04: Just factually, the judge gave you the right to depose him. [00:24:51] Speaker 04: There was an order from, I think, Judge Fogel saying you could depose Mr. Gonzalez, and you made the decision not to. [00:24:58] Speaker 04: That was just a factual question. [00:24:59] Speaker 02: Yeah. [00:24:59] Speaker 02: I think its former counsel made that decision. [00:25:02] Speaker 02: Oh, yes. [00:25:02] Speaker 02: OK. [00:25:02] Speaker 02: So we're at that state. [00:25:04] Speaker 00: Well, you know what? [00:25:05] Speaker 00: One of the issues, of course, is the magnitude of what you've characterized as mitigating evidence that wasn't presented. [00:25:15] Speaker 00: And if I understand your position, you're basically saying everything, even if minute, should have been presented in the penalty phase. [00:25:23] Speaker 00: But some of what you're talking about, it seems to me, such as a divorced parent or issues with weight, are things that the jury understands. [00:25:34] Speaker 00: And they're not things that would have changed the calculus here. [00:25:38] Speaker 00: So is it your position that, [00:25:42] Speaker 00: The defense counsel made no strategic judgment on what to present and what not to present. [00:25:49] Speaker 02: Well, he can't have made a strategic judgment or decision about what he did not investigate. [00:25:55] Speaker 02: Because the duty to make a decision or the process of making a decision only follows what has been determined to be the end result of a valid investigation. [00:26:08] Speaker 02: He did not investigate, so he can't make a decision not to do something. [00:26:14] Speaker 02: Had he investigated and done all the interviews that we had done and put all together the witness reports or declarations that we submitted, some 51, had he done all of that and then he had decided, I don't want to call the brother, but I want to call the mother. [00:26:30] Speaker 02: I don't want to call two witnesses, but I want to call another. [00:26:33] Speaker 02: Yes, then you're stuck with that. [00:26:35] Speaker 02: That's a reasonable tactical decision. [00:26:37] Speaker 02: But you can't make it in a vacuum. [00:26:39] Speaker 02: And that's what he did here, because he did not do the investigation. [00:26:43] Speaker 02: As Mr. Nolan made very clear, he did not meet the standards of 1988 as what a reasonable counsel would have done under these circumstances. [00:26:53] Speaker 02: The performance in this case is truly. [00:26:56] Speaker 02: I speak as a trial attorney as well who handles these cases. [00:27:00] Speaker 02: The performance by trial counsel in this case was abysmal. [00:27:06] Speaker 04: Whatever the result of this case is, respectfully, the performance of trial counsel was not, in my view, abysmal. [00:27:15] Speaker 04: Whether you ultimately prevail or not, and whether reasonable people could differ as to whether he should have done more and whether he failed the Strickland test, I would respectfully say that the objective evidence here is that whatever it was or wasn't, it was not abysmal. [00:27:34] Speaker 02: I mean, I'm trying to persuade, not argue, but I have a different opinion, and I've seen a lot of these cases. [00:27:40] Speaker 00: As we have. [00:27:41] Speaker 02: I understand. [00:27:42] Speaker 02: And I've seen them in the courtroom. [00:27:44] Speaker 02: I mean, in trials. [00:27:45] Speaker 02: So I have a better sense, I think, at some level of knowing what jurors respond to. [00:27:51] Speaker 02: And I am telling you that the kind of case that would have been presented here to a jury of 12 people, who you only had to convince one person of with respect to whether or not these mitigating factors, which were large, had they been developed properly, outweighed or even tied the aggravating factors. [00:28:13] Speaker 02: And the only aggravating factors in this case were the facts and circumstances of the crime. [00:28:19] Speaker 02: As horrific as they were, [00:28:21] Speaker 02: but a first degree and a second degree. [00:28:24] Speaker 00: I do want to ask you, we've pretty well focused you on this mitigation evidence, but I do want to ask you about the execution impact evidence and whether at the time [00:28:40] Speaker 00: I'm not sure the law in California was even clear that that kind of mercy testimony was admissible. [00:28:48] Speaker 00: And so I'd appreciate your comments on what the state of the law was. [00:28:53] Speaker 00: And if it's not clear that it's admissible, how would that be ineffective assistance of counsel? [00:29:00] Speaker 02: Without going to a brief and actually looking at the cases, we did brief it. [00:29:05] Speaker 02: I think even the district court makes mention of the fact that it was admissible because the district court, as I recall, found error in the performance prong of not introducing that. [00:29:18] Speaker 02: So I think the law is clear. [00:29:19] Speaker 00: Do you think the law was clear in 1988? [00:29:23] Speaker 00: Yes. [00:29:23] Speaker 02: Yes. [00:29:25] Speaker 00: OK. [00:29:25] Speaker 00: I didn't read it that way, but I'll go back and look. [00:29:27] Speaker 02: Well, and the district court, I think, when I say found error in that regard. [00:29:32] Speaker 02: But even if you leave that aside, [00:29:35] Speaker 02: There was no objection to the prosecutor when the prosecutor stood up and said not a single person came into this courtroom to say that Mr. Dennis's life should be spared. [00:29:48] Speaker 04: Yeah, I think going to Judge McEwen's point, what one of the filings on that point was, and we couldn't have put it in because the prosecutor would have objected that it was irrelevant. [00:30:01] Speaker 04: I think that was one of the habeas filings about how horrible the prosecutor's comment was, because if we had tried, the prosecutor just would have objected that it's irrelevant. [00:30:12] Speaker 02: I don't, without knowing what particular filing you're talking about, whether it's the attorney generals or mine. [00:30:18] Speaker 04: No, it was, I don't know if it was yours, it was not the attorney generals. [00:30:24] Speaker 04: It was your clients' lawyers who filed a pleading, I think at an early stage, that said on that issue, on the prosecutorial misconduct issue, it was particularly bad, because if we had tried, they would have objected that it was irrelevant. [00:30:41] Speaker 02: I'm not going to follow that line. [00:30:45] Speaker 02: All I know is trial counsel should have objected. [00:30:47] Speaker 02: But trial counsel should have had any one of the witnesses, and we got declarations from all the witnesses, which goes back to your point. [00:30:55] Speaker 02: Readily available? [00:30:56] Speaker 02: Yes. [00:30:57] Speaker 02: We went and talked to the witnesses. [00:30:59] Speaker 02: Would you have testified that your son, your child, your brother, your friend was worthy of saving? [00:31:05] Speaker 02: And they all said, yes. [00:31:06] Speaker 02: Had I been asked that, I would have. [00:31:09] Speaker 02: Now, that's a readily available fact that trial counsel did not pursue. [00:31:13] Speaker 04: So trial counsel should have asked the question. [00:31:15] Speaker 04: So you've gone over your time. [00:31:17] Speaker 04: This is a capital, no, no, no, no, no. [00:31:19] Speaker 04: This is a capital case. [00:31:22] Speaker 04: We will give you a fair amount of time for rebuttal. [00:31:25] Speaker 04: Thank you. [00:31:27] Speaker 04: And we'll hear from the attorney general. [00:31:39] Speaker 01: Good afternoon, Alice Lustro on behalf of the respondent. [00:31:43] Speaker 01: May it please the court, as counsel has indicated today, he recognizes that under Montiel, under Harrington, under Cullen versus Penholster, the review is under 2254D is of the decision that was made by the California Supreme Court on the merits. [00:32:06] Speaker 01: And those cases require, [00:32:08] Speaker 01: that this court and any reviewing court look to the possible reasons that could have supported a finding on the merits, not whether or not counsel sustained a burden of a prima facie case. [00:32:26] Speaker 01: The issues before this court are all deal with variations on the claims that trial counsel was ineffective. [00:32:37] Speaker 01: For this case, it is clear we know that the standard and the test for that is set forth in Strickland, which counsel must be deficient, and that deficiency must have prejudiced. [00:32:50] Speaker 01: But for this case in particular, I think review of the facts of Strickland is helpful. [00:32:55] Speaker 01: Strickland committed three brutal murders. [00:32:58] Speaker 01: He initially confessed to only one of them. [00:33:00] Speaker 01: Counsel was appointed, began his work, began discovery. [00:33:04] Speaker 01: Strickland then confessed against counsel's advice to the two remaining murders, at which point counsel experienced feelings of hopelessness as to the case, because he now had a client who had confessed to three brutal murders rather than just one. [00:33:19] Speaker 01: Strickland then, against advice of counsel, pled guilty and waived a jury, leaving counsel's only job to present a penalty phase to judge alone. [00:33:34] Speaker 01: Counsel spoke with Strickland about his life and got information about his background. [00:33:39] Speaker 01: He spoke on the phone with Strickland's mother and his wife. [00:33:44] Speaker 01: But when a first meeting with those two women did not come to fruition, he failed to follow up and set another meeting. [00:33:53] Speaker 01: Counsel did not seek out any other character witnesses to present on Strickland's behalf, nor did he request a psychiatric exam or look further into Strickland's emotional state. [00:34:04] Speaker 01: At Strickland's initial appearance, he had told the judge that he had little in the way of prior criminal history and that he was under significant emotional stress at the time because of his inability to provide for his family. [00:34:19] Speaker 01: But counsel did not look into that. [00:34:22] Speaker 01: And yet the United States Supreme Court, reviewing this, said that he did not violate the Sixth Amendment's right to counsel. [00:34:33] Speaker 01: Deficient performance, and there was no prejudice. [00:34:38] Speaker 01: And here, what we have is counsel who did a great number of things. [00:34:44] Speaker 01: He consulted several mental health experts. [00:34:48] Speaker 01: He researched the law on insanity, on post-traumatic stress disorder, and on grief and the way those might impact. [00:34:55] Speaker 01: the mental state of Dennis. [00:34:59] Speaker 01: He consulted with several experts, including one specifically specializing in grief. [00:35:06] Speaker 01: And that expert told him that based on a lack of post-traumatic stress disorder, that he could not prove helpful or provide any helpful testimony to Dennis during his trial, although he urged counsel to present evidence regarding his grief. [00:35:20] Speaker 01: Could I just? [00:35:22] Speaker 00: maybe move ahead a little bit. [00:35:25] Speaker 00: Because we know that he did a fair amount in terms of these approximately five experts. [00:35:34] Speaker 00: But the more pointed question I think that counsel raises that we had Dr. Benson, who now says if he'd gotten these additional materials, he would have more clearly been able to come to a firm conclusion [00:35:52] Speaker 00: on the delusion as a psychiatric disorder. [00:35:57] Speaker 00: So that's a fairly precise thing. [00:36:01] Speaker 00: We know that Dr. Benson looked at things, but he says, no, I would have actually been able to provide a much stronger conclusion, and of course, one that arguably could have given a defense. [00:36:16] Speaker 00: So would you focus on this situation with Dr. Benson before? [00:36:22] Speaker 00: and after. [00:36:23] Speaker 01: Yes, Your Honor. [00:36:24] Speaker 01: And first, I would say that the information that was provided in the later state habeas proceedings and then in the federal court was essentially more of the same, a more in-depth in some areas. [00:36:40] Speaker 01: There was just, you know, we have statements from 20 witnesses, [00:36:45] Speaker 01: 20 additional witnesses saying what a great guy he was, how devastated he was by Paul's death, and various things. [00:36:51] Speaker 01: It was essentially more of the same. [00:36:54] Speaker 01: And while Dr. Benson, yes, did testify that he felt he could have made a stronger diagnosis and was more in agreement with Dr. Woods by that time, there's really nothing in that evidence that [00:37:09] Speaker 01: is a game changer, as it were, or really turns the tide in something new and different. [00:37:15] Speaker 01: Additionally, as the district court noted, Dr. Benson's memory in terms of his testimony was at least flawed in that he insisted he had never seen the pre-sentencing report despite documentation that it had been sent to him. [00:37:33] Speaker 01: And it was a report that he called extraordinarily complete. [00:37:37] Speaker 01: He talked about one of the most complete [00:37:39] Speaker 01: summaries of the social history of the defendant and in terms of being asked to not asked to deal with insanity when we know from the documentation that he was specifically asked to he was sent instructions he was sent the law he was told that diminished capacity was no longer available in California and yet he did not provide [00:38:10] Speaker 01: anything that was helpful on that. [00:38:12] Speaker 01: And I think in terms of looking at an insanity defense, you also have to look at Dr. Woods testified that he thought that Dennis would meet this standard because he believed that Doreen had murdered his son. [00:38:30] Speaker 01: But under McNaughton, [00:38:34] Speaker 01: The test is whether or not they're laboring under such disease or defect as to not know the nature and quality of their act, or if he did know the nature and quality, did not know what he was doing was wrong. [00:38:47] Speaker 01: Now, on cross-examination, Dr. Woods agreed with the question that he was asked. [00:38:56] Speaker 01: So Dennis set out to kill. [00:38:59] Speaker 01: He did kill, and he killed his intended victim. [00:39:03] Speaker 01: Dr. Woods agreed that that was correct. [00:39:06] Speaker 04: Under McNaughton, morally wrong qualifies under wrong, right? [00:39:14] Speaker 01: Yes, in terms of he did not know that what he was doing was wrong. [00:39:17] Speaker 04: That is, if he were under a delusion that it was not morally wrong to kill the woman who had murdered his son, that that works under McNaughton were the jury to believe that, right? [00:39:34] Speaker 01: It can if the jury believes it. [00:39:35] Speaker 01: However, oh, I'm sorry. [00:39:36] Speaker 04: And isn't that basically what in the habeas proceedings Dr. Benson testified to? [00:39:43] Speaker 04: That this would have been stronger evidence [00:39:46] Speaker 04: as to his delusional belief that what he did in killing her was not morally wrong? [00:39:56] Speaker 01: It's possible, but Dr. Woods also specifically was asked the question, did he understand that it was wrong to commit that act, being the murder? [00:40:05] Speaker 01: And he said, yes, he agreed that Dennis did understand that it was wrong. [00:40:11] Speaker 01: So the jury would have heard that. [00:40:13] Speaker 00: Is it inconsistent if he understood it was wrong, but delusions led him to believe that he had no choice but to kill her because she had killed the son? [00:40:26] Speaker 01: I think that would have been a stretch to get the jury to follow that, Your Honor, when given all of the actions that Dennis took to try to evade [00:40:40] Speaker 04: Well, that's what Dr. Cohn said, right? [00:40:42] Speaker 04: Dr. Cohn said in, what was it, Dr. Cohn said there were 23 versions and the first nine of which he denied having done the killings at all. [00:40:54] Speaker 04: And isn't Dr. Cohn saying, well, that shows that he knew the killings were morally wrong because that's why he denied it. [00:40:59] Speaker 04: If he had thought that they weren't morally wrong, why would he be denying it? [00:41:03] Speaker 01: Beth, correct, Your Honor. [00:41:04] Speaker 01: And I think certainly had trial counsel attempted to present this at the trial, that's exactly what would have come out on cross-examination, is how do you explain then that he [00:41:16] Speaker 01: picks Halloween because he feels he can get away with it. [00:41:19] Speaker 01: He dons two masks, takes three weapons, and then disposes of them. [00:41:24] Speaker 04: Well, he said that to a number of the doctors, right? [00:41:26] Speaker 04: Didn't he specifically say to the doctors, I picked Halloween because that would help me get away with it? [00:41:31] Speaker 01: That's correct, Your Honor. [00:41:32] Speaker 01: He did. [00:41:32] Speaker 01: He said that a number of times. [00:41:33] Speaker 01: And so therefore, the experts knew this, which may account for why Dr. Benson and others were unwilling to make the finding of insanity that [00:41:45] Speaker 01: the trial counsel had asked them to consider, and would certainly have been something that trial counsel could have had in mind in assessing what to try to put on. [00:41:55] Speaker 04: Well, the respondent also chose not to depose Mr. Gonzalez, right? [00:42:02] Speaker 01: That's correct, Your Honor. [00:42:03] Speaker 04: Oh, you could have if you had wanted to, and then we would have known what Mr. Gonzalez had in mind. [00:42:08] Speaker 01: That's correct, Your Honor. [00:42:10] Speaker 01: We did. [00:42:10] Speaker 01: The burden is always on the petitioner in these cases. [00:42:14] Speaker 01: But yes, you are right. [00:42:15] Speaker 01: We did not. [00:42:16] Speaker 00: But we normally would see, if appropriate, we'd see an affidavit or declaration proffered by defense counsel. [00:42:24] Speaker 00: But that's also a strategic decision that they've made as well. [00:42:30] Speaker 01: That's correct, Your Honor. [00:42:32] Speaker 04: And that you've made. [00:42:33] Speaker 01: Yes. [00:42:34] Speaker 01: That's correct. [00:42:35] Speaker 01: Nobody chose to bring Gonzalez. [00:42:36] Speaker 01: Nobody wanted to hear from Mr. Gonzalez. [00:42:39] Speaker 04: As I recall, correct me if I'm wrong, in early on stages of the habeas proceeding, Mr. Gonzalez did submit a declaration, right? [00:42:48] Speaker 01: He did, Your Honor. [00:42:49] Speaker 04: But not on the points we're talking about today. [00:42:51] Speaker 01: That's correct. [00:42:52] Speaker 01: And significantly, his declaration did not touch on these specific points, which indicate that counsel [00:43:00] Speaker 01: At the time, the habeas council was attempting to talk to him, and either he wouldn't or couldn't provide information. [00:43:08] Speaker 04: We would just be speculating. [00:43:13] Speaker 01: With regard to the discussion of what Mr. Nolan said as to the Strickland council, as to council's failure to act as effective council, [00:43:32] Speaker 01: Mr. Nolan admitted that he had not read Dr. Benson's trial testimony when he was opining that counsel didn't do enough and didn't put in enough information in front of the jury. [00:43:44] Speaker 01: He had not even read the testimony that Dr. Benson presented to the jury, so he didn't know. [00:43:49] Speaker 01: He admitted that the various guidelines did not have the force of law in terms of what counsel was required to do. [00:43:58] Speaker 01: And he agreed, and this is on pages 67 and 68 of the excerpts of record where the district court is discussing the various experts and their testimony. [00:44:12] Speaker 01: He goes through a list of the types of things that counsel should look into. [00:44:17] Speaker 01: And then he admitted or agreed that trial counsel's file, in fact, contained much of that information. [00:44:25] Speaker 01: But he looked into possible defenses. [00:44:27] Speaker 01: He had researched insanity. [00:44:30] Speaker 01: He had researched post-traumatic stress disorder. [00:44:34] Speaker 01: He had researched grief. [00:44:36] Speaker 01: He had talked to a number of experts. [00:44:38] Speaker 01: He had test results that were, at best, conflicting with the mental health in terms of the few things that the experts did say, such as some paranoia. [00:44:51] Speaker 01: Some possibilities of delusions, but then the test results that were available were not consistent with Those findings and in fact once we got to federal court and looked further and petitioner developed more evidence Dr.. Watson's testing [00:45:13] Speaker 01: In fact, was inconsistent with the findings, although he said that his test results supported Dr. Woods and they were they worked together. [00:45:21] Speaker 01: But Dr. Watson found that Dennis had his intellect was in the high average range. [00:45:28] Speaker 01: that one test that was average is the one most sensitive to the impact of psychiatric? [00:45:36] Speaker 04: Well, on the IQ, I mean, wasn't that something that Dr. Garten had looked at decades before? [00:45:40] Speaker 04: Yes, Your Honor. [00:45:41] Speaker 04: And isn't that? [00:45:42] Speaker 04: And I know there's no report from Dr. Garten, but in the document entitled, if I'm remembering correctly, draft report, doesn't he point that out, the IQ findings? [00:45:51] Speaker 01: Yes. [00:45:52] Speaker 01: And that's part of what counsel would have had before him when [00:45:58] Speaker 01: trying to make his decisions about what to present is he had information from Dr. Garten that the intellect and judgment were normal, maybe high average. [00:46:09] Speaker 01: He had a better than average planning ability, that his reality testing was basically intact, and [00:46:17] Speaker 01: Dr. Garten specifically said his excellent sense of social responsibility and the ability to anticipate consequences of his initial acts and situations. [00:46:27] Speaker 01: And that's the kind of holding that had or statement and opinion that had Dr. Garten been in front of the jury attempting to present an insanity defense would certainly have at [00:46:40] Speaker 01: at least at a minimum detracted from that. [00:46:43] Speaker 04: And there's some letter in the file saying, am I right, that he discussed with Dr. Garten whether he would be cumulative to Dr. Benson and that they both agreed he shouldn't testify? [00:46:52] Speaker 01: Yes, Your Honor. [00:46:53] Speaker 04: I mean, that doesn't go to the question that your friend is raising about that if Dr. Garten had had more information, he might have testified differently. [00:47:01] Speaker 04: But Dr. Garten, at least contemporaneously, apparently agreed that he shouldn't testify. [00:47:07] Speaker 01: That's correct, Your Honor. [00:47:08] Speaker 01: And there were several things. [00:47:11] Speaker 01: And the other thing to keep in mind is that Dr. Benson provided testimony relying on the information that was obtained from Dr. Garten, Dr. Stevenson, Dr. Caldwell, Dr. French. [00:47:28] Speaker 01: But without, because it was coming in a summary form through Dr. Benson, that had less opportunity for the prosecutor then to [00:47:38] Speaker 01: cross-examine those experts as to, well, didn't you say that his reality testing was basically intact? [00:47:45] Speaker 01: Didn't you say that he has an excellent sense of social responsibility? [00:47:50] Speaker 01: Dr. French talked about him being a well-controlled normal man who denies wrongdoing, and I believe it was Dr. French who also [00:48:00] Speaker 01: indicated that because he denied wrongdoing and said he wasn't responsible for this, his paranoia levels were not unreasonable and not to be unexpected. [00:48:11] Speaker 04: Although, am I right, Dr. French's report is like from 85, so several years beforehand? [00:48:19] Speaker 01: That's correct, Your Honor. [00:48:21] Speaker 01: But it was still after. [00:48:22] Speaker 04: So it was at a time when he was denying, but things changed once he started admitting. [00:48:27] Speaker 01: That's correct. [00:48:28] Speaker 01: That's correct. [00:48:29] Speaker 01: However, this was all part of the information that counsel would have had before him when he was making his decision as to who to put on. [00:48:36] Speaker 01: Right. [00:48:37] Speaker 01: Correct, Your Honor. [00:48:41] Speaker 05: I look at this case, I guess I'm fortunate. [00:48:45] Speaker 05: I've never had to deal with capital cases in the way that [00:48:51] Speaker 05: the two of you have. [00:48:53] Speaker 05: I've now dealt with what seems to be a surprising number of cases from this side. [00:49:00] Speaker 05: And the facts here don't fit the patterns of most of the cases I've dealt with before, which I can imagine adds to the challenge of trial counsel. [00:49:12] Speaker 05: But surely where Mr. Thompson started, this is not somebody who has a record of being in trouble. [00:49:21] Speaker 05: It's not somebody who's subnormal in any intellectual fashion, not a drug deal or some other criminal action gone bad. [00:49:34] Speaker 05: I mean, it's just, and so you look at this and you try to figure out, well, how do you put the pieces of this together? [00:49:42] Speaker 05: And the part that's made me wonder from the first time I read about the facts of this case is just [00:49:50] Speaker 05: It's hard to escape the sense that this guy is, or was for that particular episode, nuts, not in control of himself. [00:50:03] Speaker 05: Now that's not from any studied or legal definition, and I understand the law doesn't put that out there. [00:50:10] Speaker 05: But it's what has given me trouble trying to figure out, even as I sympathize with trial counsel trying to figure out how to deal with the facts of this case, [00:50:20] Speaker 05: Do you have a sense of why it is a stronger light wasn't pointed in that direction? [00:50:31] Speaker 01: Well, Your Honor, I think, I mean, we would disagree that counsel did not make a strong presentation through not only Dr. Benson, but then through the 16 lay witnesses, they did present the torture [00:50:49] Speaker 01: and the suffering that Dennis experienced after the death of his son, how he came to understand in his own mind that this was something that his ex-wife had wanted, that she had not jumped into the pool, she had gone running for a neighbor, and that that's how he had developed this blame. [00:51:13] Speaker 01: It is absolutely correct, Your Honor, that we do not have a long criminal history that we frequently do see in capital cases. [00:51:21] Speaker 01: But what we do have is a person who, at his home, had been planning in his mind and fantasizing about killing both Doreen Herbert and her husband, Charles, to the point where he had built boxes similar to coffins, had weights, [00:51:43] Speaker 01: and body bags and had planned to dump them in the water somewhere so that they would experience what Paul felt when he was drowning in the pool. [00:51:56] Speaker 01: So he had an idea and plans and had taken great steps beyond simply thinking about it to come up with the mechanism to kill both of them. [00:52:09] Speaker 01: And then on Halloween night, he dons two masks [00:52:14] Speaker 01: takes a machete that he had purchased weeks before, another knife and a gun, and goes to the home of Denise Herbert, who at that time was eight months pregnant. [00:52:28] Speaker 01: When she answered the door, he immediately engaged in a vicious attack, which resulted in, among other things, her abdomen being slit open so that the fetus was expelled. [00:52:42] Speaker 01: Both she and the fetus had extraordinarily deep cutting injuries with parts of their bodies severed or nearly severed. [00:52:52] Speaker 01: And I think it's very strongly shown by what the prosecution focused on in their closing at the penalty with the facts of this crime. [00:53:01] Speaker 04: Well, that's what the California Supreme Court said. [00:53:04] Speaker 04: I mean, the California Supreme Court said that, in just describing it, the penalty phase presentation by the prosecutor relied almost entirely on the evidence of the crime. [00:53:13] Speaker 04: So the prosecutor apparently believed that the nature of these crimes justified the death penalty and that there was nothing else they needed to show the jury, basically. [00:53:24] Speaker 01: That's correct, Your Honor. [00:53:25] Speaker 01: And I think that's while we may see a case where someone has been given opportunity after opportunity to turn their life around. [00:53:35] Speaker 01: They start out maybe dealing some marijuana. [00:53:38] Speaker 01: They move up to armed robbery. [00:53:41] Speaker 01: They do whatever before they finally get to the point where they're facing a capital case. [00:53:46] Speaker 01: Some crimes are just so egregious. [00:53:51] Speaker 01: that they don't need to have that history in order for a jury to find that the appropriate penalty is death, as they did in this case. [00:54:02] Speaker 01: The planning that went into this, the steps to evade detection, the making up stories about playing with a knife, that's how I cut my hand, that's how I got blood on this or that, telling, I believe he told the press, [00:54:18] Speaker 01: They're only looking at me because they always look at the husband. [00:54:22] Speaker 01: It's probably some serial killer. [00:54:24] Speaker 01: It's too hard to find a serial killer, so they're going to blame me. [00:54:27] Speaker 01: And then morphing over time, as Dr. Cohen's report and his testimony showed, I had to avenge my son because she killed him. [00:54:39] Speaker 01: She wanted him dead. [00:54:41] Speaker 01: And so I had to avenge him. [00:54:43] Speaker 01: And that's why I did this. [00:54:44] Speaker 01: So it was this kind of progression [00:54:47] Speaker 01: Over time, once he's been caught and they're focusing on him, he tried to deflect that investigation, and it didn't work. [00:54:56] Speaker 01: And also, and I don't remember exactly where it is in the evidence, there was an article that Dennis had that was found in his home about the insanity defense. [00:55:09] Speaker 01: So if counsel also knew that, it's also not, had he tried to put on an insanity defense, it's quite possible [00:55:17] Speaker 01: that that would have come out to each of his experts. [00:55:21] Speaker 01: What about this article? [00:55:22] Speaker 01: He's studying up on it. [00:55:24] Speaker 01: He knows what he needs to say. [00:55:26] Speaker 04: I think you've also argued in your brief that there are at least some cases or perhaps studies that discuss that putting on a failed NGI can doom your ability to get life instead of death at the penalty phase. [00:55:43] Speaker 04: Yes. [00:55:45] Speaker 04: have a weak case and you don't succeed that it makes the penalty phase outcome worse. [00:55:52] Speaker 01: That's correct, Your Honor. [00:55:54] Speaker 01: And I think also, and this moves a little bit into the, comes from the conflict of interest claim that was raised, is that [00:56:05] Speaker 01: When you look at the article from which Dennis draws most of his concerns about counsel's later feelings about doing defense work, but one of the things the article talks about is his colleagues. [00:56:21] Speaker 01: The district attorney at the time of that article said that he was the best public defender we had for saving somebody from the gas chamber. [00:56:30] Speaker 01: A colleague said, if you're trying capital cases, it was what he did best. [00:56:37] Speaker 01: And so I think we have to look at that is that this is not a brand new attorney who had never done this. [00:56:45] Speaker 01: This is not somebody who was a year out of law school that was thrown into this. [00:56:48] Speaker 01: This was somebody who knew what he was doing. [00:56:51] Speaker 01: And I think also if you read his closing argument and not just the, oh, I felt helpless and I didn't prepare a long statement, if you actually look at his whole closing argument, it's exactly what his colleague was talking about. [00:57:07] Speaker 01: He went to the jury and put his emotion out there to convince them of why they should spare his client. [00:57:16] Speaker 01: He talked about some homilies. [00:57:19] Speaker 01: He talked about an incident when he was skydiving. [00:57:22] Speaker 01: And that was one of the things that Council Dennis now complains about. [00:57:25] Speaker 01: He was talking about personal experience. [00:57:28] Speaker 01: But he turned that around and said, you know, when I'm skydiving, I jump out of that plane and I'm hoping my parachute works. [00:57:36] Speaker 01: Doreen Herbert was Paul's parachute. [00:57:39] Speaker 01: She failed him, showing the torment, the feelings of helplessness. [00:57:45] Speaker 00: Although he's portrayed here, depending on which side you read on the habeas, as a good attorney, I was quite surprised that he didn't jump right out of his chair with respect to the prosecutor in closing, that not a single witness stood up here and argued for mercy. [00:58:05] Speaker 00: made that statement. [00:58:07] Speaker 00: There was no objection to that. [00:58:09] Speaker 00: So I'll ask you the same question that I asked his counsel, and that is, what was the state of the law at the time in California? [00:58:23] Speaker 01: The state of the law at the time, Your Honor, was that the jury could consider Mercy. [00:58:28] Speaker 01: But I think it was not as clear as to whether or not a witness could actually ask for mercy because it was clear under the, in terms of like victim impact, a victim could not say I want him to be executed or I want him to be spared because that's the open issue. [00:58:49] Speaker 01: And what we've got here is it's [00:58:52] Speaker 01: Quite frankly, unfathomable that jurors could hear from witness after witness about how important Dennis had been to their lives, the help he had given them financially, the help he had given them just in other ways of letting people stay with him, getting behind on the rent if he would understand it, what a great father, the torment he felt, the love by his mother and his stepmother they talked about, [00:59:19] Speaker 00: It's a backhand way of making that, but it wasn't certainly explicit. [00:59:23] Speaker 00: So are you suggesting that had the witnesses actually testified with respect to the importance of his life that that would not have been allowed? [00:59:38] Speaker 01: No, the witnesses did test. [00:59:39] Speaker 00: Well, they did. [00:59:40] Speaker 00: No, they talked about who he was to them and all of that, but they didn't really capsulize [00:59:49] Speaker 00: what is characterized as mercy testimony. [00:59:56] Speaker 01: I suspect that at the time, one, I'm not sure that the prosecution really would have objected had they asked, although there was certainly concern that they would. [01:00:11] Speaker 01: Had the witnesses used the word mercy, I suspect the court would have allowed it. [01:00:17] Speaker 01: Certainly, as I said, it's a consideration. [01:00:20] Speaker 01: But I think what you also have to look at is, given what they said, it is essentially, like I said, unfathomable that a jury could hear that testimony about the specifics. [01:00:31] Speaker 01: And essentially, because the witness said, oh, and I want you to give him mercy, would essentially write that off and ignore it and let it go. [01:00:42] Speaker 01: And again, reading the entirety of the closing argument, that's what that argument was all about from Mr. Gonzalez. [01:00:52] Speaker 01: You can give mercy. [01:00:53] Speaker 01: You can give sympathy. [01:00:54] Speaker 01: You should. [01:00:55] Speaker 01: The prosecutor has asked you to show courage and execute my client. [01:01:02] Speaker 01: I am asking you to show courage and give him sympathy and mercy and let him live. [01:01:07] Speaker 01: The prosecutor talked about, [01:01:11] Speaker 01: Cain and Abel, he said, the ultimate chance for deterrence. [01:01:16] Speaker 01: And yet God said, I am a merciful God and banished Cain. [01:01:21] Speaker 01: And he said, that's what I want you to do is banish my client to life in prison. [01:01:28] Speaker 01: So his entire argument was about mercy and sympathy and the fact that the jury could and should consider those at that stage. [01:01:39] Speaker 01: And to think that, [01:01:41] Speaker 01: the jury would have somehow ignored all of that evidence just because the witnesses did not say mercy just doesn't seem reasonable. [01:01:52] Speaker 01: And I see I'm out of time. [01:01:53] Speaker 04: All right. [01:01:54] Speaker 04: Thank you, counsel. [01:02:02] Speaker 04: Counsel, how much time would you like for rebuttal? [01:02:06] Speaker 02: Could I ask for 15 minutes? [01:02:09] Speaker 04: We're not going to give you 15 minutes for rebuttal, but we'll give you five minutes for rebuttal. [01:02:13] Speaker 00: We respect you for asking, though. [01:02:16] Speaker 02: OK. [01:02:16] Speaker 02: Unfathomable jury wouldn't consider what they said and meaning that they wanted him to live. [01:02:21] Speaker 02: Then how did the DA get up and say, not one person? [01:02:26] Speaker 02: You can't have it both ways, OK? [01:02:29] Speaker 02: Closing argument. [01:02:30] Speaker 02: It was personal anecdotes. [01:02:31] Speaker 02: It was the story of the Bible. [01:02:33] Speaker 02: It was the story of that. [01:02:34] Speaker 02: It was not driven home about Michael Dennis. [01:02:39] Speaker 02: He didn't even mention Dr. Benson's testimony in the guilt phase, which, disagreeing with the district court who said that it happened mere days before, happened 18 days before. [01:02:52] Speaker 02: That's not mere days. [01:02:54] Speaker 02: He didn't mention Benson. [01:02:56] Speaker 02: It wasn't driven by the mitigating facts, and that's important. [01:03:00] Speaker 02: But you can't make a decision about putting on or not putting on an insanity defense unless you've done the investigation to make a determination that it exists. [01:03:11] Speaker 02: This decision, because there was an article, or this decision that we don't know that was made, but whatever was made without the investigation needed. [01:03:20] Speaker 02: Because when the investigation was done, all of the doctors said, I would have testified as to an insanity defense, as would Dr. Wood. [01:03:29] Speaker 02: The crime equals death is not the law. [01:03:32] Speaker 02: If that were the case, then we would have a list of crimes, a law enforcement officer shootings, child killings, whatever. [01:03:38] Speaker 02: We would have those and that would be then it's automatic death. [01:03:42] Speaker 02: It's not the law in California. [01:03:44] Speaker 02: It's not the law in the United States. [01:03:46] Speaker 02: Had no choice but to rely on the facts. [01:03:50] Speaker 02: The court asked with respect to aggravating evidence that that's what the district attorney did. [01:03:55] Speaker 02: No. [01:03:56] Speaker 02: The district attorney had three things it could do. [01:03:58] Speaker 02: It could introduce facts and circumstances of the crime. [01:04:01] Speaker 02: It could introduce other felony convictions. [01:04:04] Speaker 02: Or it could introduce other acts of violence. [01:04:07] Speaker 02: It didn't introduce any other aggravation because it didn't have any. [01:04:11] Speaker 02: Because Mr. Dennis is unique. [01:04:15] Speaker 02: No prior criminal record. [01:04:18] Speaker 02: Perfect prisoner, perfect model inmate, et cetera. [01:04:22] Speaker 02: Those are the things that drive. [01:04:25] Speaker 02: Boxes, coffin, another wild, deluded kind of idea. [01:04:30] Speaker 02: Because that's not how the crime occurred. [01:04:32] Speaker 02: The crime occurred in this bizarre October Halloween night. [01:04:38] Speaker 02: It didn't have anything to do with that. [01:04:40] Speaker 02: Watson found left temporal lobe problems, damage. [01:04:45] Speaker 02: IQ doesn't mean anything when it comes to insanity or mental health or mitigation. [01:04:51] Speaker 02: It may mean you're not Atkins, intellectually disabled, but it has nothing to do with that. [01:04:57] Speaker 02: He, Dr. Watson, supported Wood's testimony completely. [01:05:02] Speaker 02: The other doctors, the same thing. [01:05:05] Speaker 02: While the earlier reports that they had may have said things, Dr. French's MMPI would have come in. [01:05:11] Speaker 02: It supported Dr. Benson. [01:05:12] Speaker 02: It supported Dr. Woods. [01:05:14] Speaker 02: Dr. Caldwell's MMPI. [01:05:17] Speaker 02: We had the guy that produced the MMPI come in and testify about what the results were. [01:05:22] Speaker 02: All of those doctors would have come in. [01:05:25] Speaker 02: Experts weren't unwilling to make the diagnosis. [01:05:29] Speaker 02: The experts didn't have the information to be able to make the diagnosis. [01:05:34] Speaker 02: And the diagnosis was not grief. [01:05:37] Speaker 02: It was not depression, although I'm sure Mr. Dennis, as we can all imagine, was going through grief and was certainly depressed over the situation. [01:05:46] Speaker 02: The diagnosis that was there that wasn't picked up by trial counsel was delusional disorder. [01:05:53] Speaker 02: And that is what explains all of the actions in this case. [01:05:58] Speaker 02: And had all of this been presented, if nothing else, it could have had the effect and would have had the effect of one juror saying, I'm not going to vote death because he's not the kind of person that we know about that deserves death. [01:06:18] Speaker 02: He is a unique individual. [01:06:22] Speaker 02: The California Supreme Court had an unreasonable application of Strickland and it's a D-1 violation. [01:06:37] Speaker 02: Had they done what they should have in terms of ordering an OSC and or asking or allowing us for an evidentiary hearing, then they wouldn't have done what they did do, which make an unreasonable determination of the facts under Broomfield versus Kane. [01:06:55] Speaker 02: Because they should have ordered the OSC. [01:06:58] Speaker 02: They should have allowed us to present all that evidence to them back at the time period when the second petition was filed in the California Supreme Court. [01:07:06] Speaker 02: And had they done that, they would have had all of this evidence inside their purview so that they could have made that determination. [01:07:13] Speaker 02: They did not. [01:07:14] Speaker 02: They shunted this away by simply saying denied. [01:07:18] Speaker 03: Grief was not the... You're now out of time. [01:07:21] Speaker 03: If you have a final point, counsel, you can make it. [01:07:25] Speaker 02: Yes. [01:07:26] Speaker 02: If I can just have one second. [01:07:28] Speaker 02: Sure. [01:07:29] Speaker 02: Law. [01:07:29] Speaker 02: Mr. Dennis should prevail in this case, especially in terms of penalty. [01:07:35] Speaker 02: Mr. Dennis' case is one of those that law and justice require relief. [01:07:41] Speaker 04: Thank you. [01:07:41] Speaker 04: All right. [01:07:42] Speaker 04: Thank you. [01:07:42] Speaker 04: We thank both counsel for their helpful arguments and their hard work in this case. [01:07:47] Speaker 04: The case just argued is submitted. [01:07:49] Speaker 04: And with that, we are adjourned. [01:07:52] Speaker 00: All rise. [01:08:02] Speaker 00: This court for this session stands adjourned.