[00:00:00] Speaker 02:
Good afternoon your honors may it please the court sigh von dena peterson for appellant andrew brown I'd like to reserve seven minutes for rebuttal all right.

[00:00:10] Speaker 02:
Please keep your eye on the clock.

[00:00:11] Speaker 02:
I'll try to help you out Thank you your honor the eight briefed claims show a trial that was rife with injustice But I'd like to focus first today on defense counsel's ineffectiveness at penalty and second on the prosecutors Can you speak up a little bit counsel?

[00:00:27] Speaker 02:
Yes your honor

[00:00:28] Speaker 02:
I'd like to focus first on defense counsel's ineffectiveness at penalty and second on the prosecution's Batson violation.

[00:00:37] Speaker 02:
Starting with IAC, as the Supreme Court held in Buck v. Davis, when a defendant's own lawyer puts in offending evidence that no competent defense attorney would say about his own client, it's in the nature of an admission against interest, more likely to be taken at face value.

[00:00:56] Speaker 02:
Andrew Brown's defense made gratuitous concessions and glaring omissions, thereby undermining his own mitigation on at least four critical issues.

[00:01:06] Speaker 02:
First, Council's own expert volunteered that in her psychological opinion, Brown was a member of a Compton Bloods gang simply because he was bothered by the Crips when walking through their territory.

[00:01:19] Speaker 02:
And Council didn't present evidence that Brown was not, in fact, a gang member.

[00:01:24] Speaker 02:
Second, counsel conceded that Brown was a volitional drug user through a single episode when he went to the emergency room at age 17 or 18.

[00:01:33] Speaker 02:
He didn't explain, however, that Brown's substance use began when he was just seven or eight, a little boy living with his grandparents who supplied him with the hard liquor that turned him into a, and I quote, heavy drinker, unquote, by age nine, that he used marijuana and PCP by age 13,

[00:01:54] Speaker 02:
cocaine by age 16 and that single psychotic episode that was presented was only one in a series.

[00:02:01] Speaker 02:
Your honors it's hard to fathom a nine-year-old's heavy drinking and impossible to consider it being volitional.

[00:02:08] Speaker 02:
Instead when we hear evidence like that we consider things like trauma, family background, and we wonder about the grown-ups in that child's life.

[00:02:18] Speaker 02:
Third, counsel conceded that Andrew had a normal, loving life once he moved in with his grandparents, instead of presenting evidence that his grandfather had repeatedly raped his mother when she was a child living under his roof, all while his grandmother condoned it by saying, quote, better him than another man, unquote.

[00:02:39] Speaker 01:
Let me ask you this, counsel, because now we are on a differential review.

[00:02:44] Speaker 01:
And as you know, the presumption of reasonableness is quite strong.

[00:02:50] Speaker 01:
This isn't the type of case where counsel didn't present pretty substantial mitigating evidence.

[00:02:57] Speaker 01:
And so the fact that counsel, with every evidence that you

[00:03:02] Speaker 01:
present there could be a counter and could open the door to rebuttal and response evidence by the government so why aren't these strategic choices to really instead of focusing on the fact that he used drugs when he was really young which then could open the door to the fact that he was selling drugs to support his habit council presented a little bit of that but really kind of tied it to

[00:03:30] Speaker 01:
his heavy drug use was really the numb, the pain of childhood trauma.

[00:03:35] Speaker 01:
So some of the evidence that you were talking about was admitted, the flavor and it seems to me the strategy appears to be different than what you would like counsel to have done.

[00:03:46] Speaker 01:
So that's where the presumption and deference review parts come in.

[00:03:51] Speaker 02:
I understand your honor's concern and that EDPA is a deferential standard, but it's not simply what I would have liked counsel to have done.

[00:03:58] Speaker 02:
It is what the Supreme Court has held

[00:04:00] Speaker 02:
in cases like Williams and Wiggins and Porter and Rompilla that dictate what counsel ought to have done.

[00:04:08] Speaker 02:
Supreme Court president and this court's own president makes clear

[00:04:13] Speaker 02:
that when the defense puts on evidence that is unmistakably aggravating in nature, like gang membership, and we know that this couldn't have been strategic because counsel fought tooth and nail pre-trial during voir dire, and to keep out any evidence of gang membership, they argued unsuccessfully in motions in lemonade to say, to keep out any evidence of gang membership because they knew how damning that would be.

[00:04:40] Speaker 02:
And yet this is the defense's own expert who volunteers unsolicited that Andrew was a gang member.

[00:04:49] Speaker 02:
So I think those are objectively unreasonable decisions with no strategic benefit by counsel's own on the record admissions during trial.

[00:04:59] Speaker 03:
Well, at some level, I mean, this is a tough case to defend.

[00:05:02] Speaker 03:
Hard to escape that the facts.

[00:05:05] Speaker 03:
I've had a fair number of these cases.

[00:05:07] Speaker 03:
These facts sort of stand out at how troubling the events are and were.

[00:05:18] Speaker 03:
And so you've got a tough hand.

[00:05:20] Speaker 03:
At some point, why isn't it a reasonable defense strategy to try to connect with the jury as, look, I'm being candid with you.

[00:05:29] Speaker 03:
We've got these bad marks.

[00:05:30] Speaker 03:
Here they are.

[00:05:31] Speaker 03:
And still try to portray a broader picture.

[00:05:36] Speaker 03:
You can say, well, they tried to keep gang membership out.

[00:05:42] Speaker 03:
not getting very far with that so why not try to say get ahead of the curve and say you can trust me I'm telling you straight so you'll believe me later when I tell you that his personal history family background and so forth you need to give a lot of weight to that why isn't that a reasonable strategic decision and more the point for us

[00:06:05] Speaker 03:
How could a fair-minded jurist say the California Court's assessment was unreasonable?

[00:06:14] Speaker 02:
Your Honor, I think this court can say the California Supreme Court's decision was unreasonable because defense counsel put on the aggravating side of the scale

[00:06:28] Speaker 02:
Evidence that ought to have been on the mitigating side of the scale and so we're not just looking at evidence that he failed to present but rather evidence that he brought forward and caused the jurors to look at his client in an aggravating in a way that they would Fear him in fact we have on the record Statements in trial itself that the jurors feared Andrew because they thought he was a gang membership

[00:06:55] Speaker 02:
They thought that they were followed by members of his gang.

[00:06:58] Speaker 02:
All of this is unfounded unless you look at, for example, this example I mentioned, that trial counsel's own defense volunteered that their client was a gang member.

[00:07:10] Speaker 02:
And I'll provide another example as well.

[00:07:12] Speaker 02:
And that's that the counsel's expert introduced objectively aggravating evidence in the form of the word sociopath, which the Supreme Court and this court have recognized can only be aggravating.

[00:07:24] Speaker 02:
That's not a mitigating term.

[00:07:26] Speaker 02:
when it's usually prosecutors who present words like sociopath and antisocial personality disorder.

[00:07:33] Speaker 02:
But here, it was the defense's expert, Dr. Kaiser Boyd, who introduced that aggravating term.

[00:07:40] Speaker 02:
And the prosecutor then emphasized that term to the jury.

[00:07:43] Speaker 02:
That term was never explained.

[00:07:45] Speaker 02:
And the district court, which this court is reviewing, saw nothing wrong with that and instead said it was fine for the jury to use their, and I quote,

[00:07:54] Speaker 02:
common sense unquote understanding of what sociopath meant because brown quote clearly fell into the dictionary definition of the term unquote and cited dictionary.com.

[00:08:05] Speaker 04:
But counsel can I on that point and this was going to be part of my broader question Dr. Kaiser Boyd also spoke at length about the trauma that Andrew experienced you know the

[00:08:16] Speaker 04:
the broken home being removed from his mother, all the whippings, all that terrible aspects of the record.

[00:08:26] Speaker 04:
And I understood the sociopath to be that there were symptoms that result from the trauma that could lead to that, but she wasn't suggesting or I thought the record was that she did not think that that was an appropriate identifier for him.

[00:08:43] Speaker 04:
Wasn't that the case?

[00:08:44] Speaker 02:
She did not make a diagnosis of sociopathic disorder or antisocial personality disorder, you're right, and she did opine about trauma.

[00:08:55] Speaker 02:
But Your Honor, again, it doesn't take a PhD to say that cigarette burns are torture and that they are not normal forms of discipline, and that a five-year-old or a four-year-old locked in a dark closet would be terrified of the dark.

[00:09:09] Speaker 02:
That was what she was engaged to say.

[00:09:11] Speaker 02:
She was a trauma expert.

[00:09:12] Speaker 04:
I guess my broader question, though, is you've isolated a few places where maybe some aggravating slivers of things were presented by defense, from the defense side.

[00:09:23] Speaker 04:
But as the district court pointed out, there was quite a bit of other evidence and mitigation about the trauma that he went through and intellectual deficits and poor work at school and not getting the sort of treatment and support that he needed.

[00:09:39] Speaker 04:
The district court thought a lot of this would have been cumulative of other stuff.

[00:09:43] Speaker 04:
Why is that wrong in your view?

[00:09:46] Speaker 02:
Your honor, I don't think that some trauma is cumulative of more trauma I think as I can imagine a traumatized individual would not agree with that assessment of cumulative trauma, but I'll also say that

[00:10:02] Speaker 02:
council Failed to present much more sympathetic evidence when it made these aggravating concessions about sociopathy for example the Supreme Court in this court have held consistently that a different diagnosis of organic brain dysfunction or organic brain damage is Mitigating that was a diagnosis that council had and they glossed over it

[00:10:30] Speaker 02:
Dr. Kaeser-Boyd also glossed over it and instead introduced this evidence of, or this term, sociopathy.

[00:10:39] Speaker 02:
And, Your Honor, I appreciate that, you know, you will look at Dr. Kaeser-Boyd's testimony and parse it out and look at the fact that it wasn't a diagnosis, it was just a term, but that's not what the jury did here, and that's not what, that's not even what the fact finder, the trial judge, here said.

[00:10:59] Speaker 02:
The trial judge summed up the penalty phase presentation as follows.

[00:11:06] Speaker 02:
They said, and I quote, although the defendant did undergo, prior to the time that he was five or six, some deprivation of love and attention, he was taken out of that environment, put into a different environment, which was very different, loving environment.

[00:11:23] Speaker 02:
This is at volume 44 of the transcripts at page 6437.

[00:11:31] Speaker 02:
I think that the effect on the fact finder in this trial and the jury was very different.

[00:11:37] Speaker 02:
You're right that the defense did present some evidence of mitigation of trauma, as did the counsel in Beemore, Beemore versus Chappelle.

[00:11:47] Speaker 02:
In fact, I believe there were 40 different witnesses presented at the penalty phase in that case, and this court still found

[00:11:55] Speaker 02:
unconstitutional the deficient performance that was prejudicial and what happened here was similar in that even though witnesses were presented they were all presented to talk about this isolated episode of trauma and the district court erroneously found that any more evidence of trauma of drug use of mental illness would all be cumulative and I think that's just that's erroneous

[00:12:20] Speaker 04:
Can I ask you this?

[00:12:21] Speaker 04:
One of the things that gave me pause about this case is, and I don't think that this is necessarily so cumulative, but the crime spree that he went through right around the time of the murder.

[00:12:34] Speaker 04:
Those are very serious, very aggravated other uncharged crimes.

[00:12:39] Speaker 04:
and some of the state habeas evidence was that he was in a state of decompensating basically in the last year at least before the crime.

[00:12:50] Speaker 04:
And I wonder if you could speak to whether there might have been something problematic with not introducing evidence of his mental state decompensation in that period in order to blunt at least at the penalty phase

[00:13:05] Speaker 04:
The notion that he was just an unthinking didn't care was willing to commit harm against many other people Yes, your honor.

[00:13:14] Speaker 02:
I agree with you that he there was evidence that he was decompensating severely and rapidly I believe is the terminology that dr. Pablo Stewart

[00:13:25] Speaker 02:
uses in his declaration to describe what Andrew was going through and as you pointed out in a very limited time period this all happened in the year I think 1988 within a couple months and it is

[00:13:40] Speaker 02:
Indicator it's similar to what I'm describing was omitted from the penalty phase mitigation presentation But it would have also gone to rebut some of or explain some of this aggravation as crime spree as you described it And we do have a claim on appeal that alleges ineffective assistance of counsel based on failure to present mental state evidence that goes both to the capital crime which occurred during that 11 or 12 month period

[00:14:08] Speaker 02:
as well as these uncharged aggravators.

[00:14:12] Speaker 02:
And I'll also say that counsel could not have omitted this information strategically because, again, we have in the trial transcript trial counsel's own words during the IAC litigation against Andrew's prior attorney, whose name was James Spring, where

[00:14:29] Speaker 02:
uh... current counselor his actual counsel argues james spring was defective for not having hired mental health experts for not having interviewed him in the jail for not having interviewed his family and friends who could have spoken to his mental state in the days and weeks and months in the period leading up to the capital crime and aggravators

[00:14:49] Speaker 02:
So he was on notice, he knew this was important, and he had that information.

[00:14:56] Speaker 04:
Having brought that up, let me ask you this.

[00:14:58] Speaker 04:
The government responds, and the district court responded, at least in part, that that was not the defense theory.

[00:15:05] Speaker 04:
that the defense theory was Brown wasn't the person who actually shot the victim and there's some evidence to support that.

[00:15:13] Speaker 04:
Wouldn't it have been inconsistent to try to present this evidence of he was a shooter but he wasn't mentally in the right place versus he was not?

[00:15:23] Speaker 02:
don't think so your honor I think it's it's consistent to present a mentally ill teenager who's rapidly decompensating from mental illness from yes substance use from trauma from genetic predisposers and also is not guilty of several crimes or a crime so I don't think those two are inconsistent paths for counsel to take and again like I said counsel didn't intend to just choose one or the other they say in the

[00:15:52] Speaker 02:
trial itself that both would have been important.

[00:15:57] Speaker 01:
Do you want to address the incompetency issue?

[00:15:59] Speaker 01:
And let me ask you this before you do that.

[00:16:02] Speaker 01:
Between all of the IAC issues and the incompetency issue, do you view one as being more compelling than the other?

[00:16:09] Speaker 01:
What's your strongest claim?

[00:16:12] Speaker 01:
You mean of all the claims that are briefed on appeal, Your Honor?

[00:16:16] Speaker 01:
Right, if I put the IAC, all the effectiveness into one category and incompetency as a separate issue, is there a claim that you would identify as being the strongest?

[00:16:26] Speaker 02:
Your Honor, I think that the deficiencies at penalty phase, the failure to investigate and present mitigation is more fulsome in that it contains such a high volume of errors and failures to act and gratuitous concessions

[00:16:41] Speaker 02:
And the prejudice resulting from it is, again, correspondingly voluminous and also illustrated by the record very clearly.

[00:16:50] Speaker 02:
So I would say that is probably the more clear-cut path to finding a claim under Strickland.

[00:16:58] Speaker 01:
But once you demonstrate errors, then, of course, as you argued, you've got to get past the prejudice.

[00:17:03] Speaker 01:
And there, we'll have to weigh that against the aggravating factors and then add deference on top of that, right?

[00:17:09] Speaker 02:
Yes, Your Honor.

[00:17:11] Speaker 02:
And as I mentioned before, I think the way we get past prejudice is we look at the real-time words that the trial judge used about how he felt, how he viewed the presentation at penalty.

[00:17:26] Speaker 02:
And he sums it up in a sentence that I quoted from the record when I mentioned it.

[00:17:31] Speaker 02:
And he says how that made him feel.

[00:17:32] Speaker 02:
He says, I thought there was compelling evidence of trauma.

[00:17:37] Speaker 02:
It happened when he was five.

[00:17:39] Speaker 02:
And then there was nothing.

[00:17:40] Speaker 02:
There was this critical disconnect.

[00:17:42] Speaker 02:
And then this crime happened 12 years later.

[00:17:45] Speaker 02:
And then we have language from the jury saying, I was scared of him.

[00:17:50] Speaker 02:
I thought he was a gang member.

[00:17:51] Speaker 02:
I thought we were followed by members of his gang, unfounded.

[00:17:56] Speaker 02:
We have the district court judge saying, it's fine for the jury to look at the word sociopath and use dictionary.com or whatever common sense understanding they have of the term.

[00:18:05] Speaker 02:
So we have all of this evidence of prejudice.

[00:18:11] Speaker 02:
And as your honors know, prejudice is assessed cumulatively, even if there is not a single error that rises to the level of Strickland prejudice.

[00:18:24] Speaker 02:
I'm listing so many errors.

[00:18:26] Speaker 02:
I think I started off saying I have four examples.

[00:18:28] Speaker 02:
The briefing has dozens more.

[00:18:31] Speaker 02:
I think there are several examples of deficient performance and again like I said the aggravation and the mitigation and that's all the jury had to do there just had to be a reasonable probability that one juror at least one juror would have weighed the aggravators differently for it with the with the mitigators and I'm saying that if you could move things from the aggravation side of the scale to the mitigation side of the scale that would have

[00:19:01] Speaker 02:
balance things in favor of life and not death.

[00:19:05] Speaker 02:
And having unbalanced the scales

[00:19:08] Speaker 01:
For their own client defense counsel didn't do anything to rebalance the scales your honor if on your competency to stand trial claim, you know, there's a difference between having mental health issues sometimes serious mental health issues and not being able to meaningfully assist counsel and I didn't I'm struggling to see the connection between his mental health issues, which he definitely has

[00:19:33] Speaker 01:
to the ability to understand the trial or to consult with counsel and, you know, what would have alerted the trial judge that there was a competency problem, especially when defense counsel who worked closely with him didn't raise that?

[00:19:49] Speaker 02:
I understand, Your Honor, that competency to stand trial is its own standard.

[00:19:55] Speaker 02:
We also allege intellectual disability, which is an ineligibility for the death sentence.

[00:20:02] Speaker 02:
I'd say in terms of competence, all the evidence that I just mentioned that was omitted or presented wrongly to the jury in penalty phase mitigation also speaks to his incompetence to stand trial.

[00:20:17] Speaker 02:
So for example, developmental delays, mental illness, including psychiatric hospitalizations, which continued while he was in Riverside County Jail waiting trial.

[00:20:29] Speaker 02:
self-medication, like, again, drinking heavily at age nine.

[00:20:33] Speaker 02:
These are not normal things that people do, and they don't stop.

[00:20:37] Speaker 03:
It is a big leap to talk about what happened at age nine to his confidence to stand trial years later.

[00:20:44] Speaker 03:
So I think you've got to bridge the gap a little better than that.

[00:20:48] Speaker 02:
I agree with you.

[00:20:49] Speaker 01:
Am I correct that none of the experts who examined him talked about competency?

[00:20:55] Speaker 02:
That's true, Your Honor, and none of the experts were hired to talk about competency, which is- Did his attorney talk about competency?

[00:21:01] Speaker 03:
His attorney did not talk about competency, and I think that's- And one of the key measures is the ability to communicate with counsel.

[00:21:07] Speaker 03:
Counsel apparently didn't think that he was dealing with somebody who couldn't respond to questions, offer whatever comments you expect to get from- Your Honor.

[00:21:17] Speaker 02:
I understand, and I'm making an argument that this trial counsel didn't do a lot of things they ought to have done.

[00:21:23] Speaker 02:
Another argument that is in our briefing is that trial counsel actually was operating under a conflict of interest.

[00:21:30] Speaker 02:
They had a reason, perhaps, not to raise competency of Andrew Brown.

[00:21:36] Speaker 02:
Andrew was stabbed in Riverside County Jail while awaiting trial by an individual who was also at Riverside County Jail and another inmate.

[00:21:47] Speaker 02:
who was represented by the same counsel who's representing Andrew.

[00:21:52] Speaker 02:
So, I mean, this happened in real time, Your Honor.

[00:21:55] Speaker 02:
I think that it also speaks to competency and to trial counsel's awareness and... The life in jail.

[00:22:05] Speaker 02:
I mean, yes, Your Honor.

[00:22:08] Speaker 02:
I think it does speak to life in jail as well, but I think that

[00:22:12] Speaker 02:
It's impact on on Andrew just like the alcohol and the mental illness and the psychiatric holds and the trauma was to render him incompetent at that time and I understand it's a leap from age what happened at age 5 to age 9 to age 17 to 19 when this capital crime took place, but

[00:22:37] Speaker 02:
It's not that much time.

[00:22:39] Speaker 02:
And it compounds.

[00:22:39] Speaker 02:
It builds.

[00:22:40] Speaker 03:
So competence to stand trial is what is he doing at age, was it 22?

[00:22:44] Speaker 03:
I forget what year the case actually went to trial.

[00:22:46] Speaker 03:
But if nobody, if the judge presiding over the courtroom, if the lawyer he's working with, the experts, including those who have interviewed him, nobody else is talking about his ability to communicate.

[00:23:01] Speaker 02:
You're right, Your Honor.

[00:23:02] Speaker 03:
Who do we have to look to?

[00:23:04] Speaker 02:
Right, Your Honor.

[00:23:05] Speaker 02:
I will say that the timing does matter.

[00:23:07] Speaker 02:
It's important.

[00:23:08] Speaker 02:
Competency is, but it is not a static pronouncement.

[00:23:14] Speaker 03:
And you've got a whole array of issues with regard to being subject to the death penalty.

[00:23:21] Speaker 03:
At age, whatever 20 it was.

[00:23:26] Speaker 02:
You wanted to save some time?

[00:23:28] Speaker 02:
I do.

[00:23:28] Speaker 02:
I would like to save some time, Your Honor.

[00:23:31] Speaker 02:
Raise the bats and claim if I may, but I will take a seat for now.

[00:23:34] Speaker 02:
Thank you.

[00:23:55] Speaker 00:
Good afternoon and may it please the court Vincent LaPietra on behalf of respondent.

[00:24:00] Speaker 00:
The district court properly denied relief in this case because the California Supreme Court reasonably rejected these claims as meritless.

[00:24:08] Speaker 00:
Counsel's defense strategy at the penalty phase was that Mr. Brown was flawed but redeemable.

[00:24:16] Speaker 00:
He noted that the aggravating offenses all occurred within a year of each other and that that year began shortly after Mr. Brown was hospitalized for a drug-induced mental health crisis.

[00:24:28] Speaker 00:
He explained that

[00:24:30] Speaker 00:
Mr. Brown suffered horrendous child abuse that resulted in untreated mental injury and substance abuse.

[00:24:38] Speaker 00:
He further presented evidence that people cared for Mr. Brown and that he had redeeming qualities in their view.

[00:24:46] Speaker 00:
Under the label of failure to investigate, Mr. Brown now seeks the Second Guest Council's tactical decisions.

[00:24:54] Speaker 00:
This claim fails

[00:24:55] Speaker 00:
Think as is evident from the argument today because Brown has not identified any particular failure to investigate or a specific piece of evidence that counsel should have Decide could have decided unreasonably decided against presenting excuse me This morning or this afternoon Mr.. Brown argues that

[00:25:17] Speaker 00:
Council was deficient for failing to present evidence that cut against his mitigation strategy.

[00:25:24] Speaker 00:
He says membership of the gang from Dr. Kaiser Boyd, drug use without explaining the further background, and the rape of Catherine Brown, Mr. Brown's mother.

[00:25:38] Speaker 00:
Working in seratum,

[00:25:41] Speaker 00:
The evidence, there is evidence to establish that Mr. Brown was a gang member as counsel noted because the trial court allowed it during the guilt phase.

[00:25:51] Speaker 00:
Although counsel has presented some declarations establishing that perhaps he was not.

[00:25:56] Speaker 00:
What matters is that counsel knew, counsel definitely had a conversation with his client, knew what the evidence of that was regarding and may have decided against focusing on that issue when Dr. Kaiser Boyd stated that it was her understanding that Mr. Brown was a gang member, especially when she clarified that she wasn't an expert on the matter and was merely intuiting that fact.

[00:26:23] Speaker 00:
The drug use, without explaining the background, counsel certainly was aware of all of this information.

[00:26:29] Speaker 00:
In fact, the subheading in the opening brief states that counsel was aware of all of this information.

[00:26:37] Speaker 00:
And as the court noted, made a tactical decision regarding how to present this evidence.

[00:26:42] Speaker 00:
Certainly during closing argument and through Dr. Kaiser Boyd, counsel established that Mr. Brown

[00:26:49] Speaker 00:
was long addicted substance abuser, alcohol and drugs.

[00:26:55] Speaker 00:
But as this court noted in Mayfield v. Woodford, jurors don't look kindly on explanations of this kind of violent behavior being the result of drug use.

[00:27:09] Speaker 00:
So he definitely presented the information, but wanted to contain that in order to allow the jury to view Mr. Brown as redeemable.

[00:27:19] Speaker 04:
Well, counsel, let me pick up where I started with your friend on the other side.

[00:27:24] Speaker 04:
The evidence that came in through Dr. Stewart about this crime, well, he didn't bring evidence about the crime spree, but his mental state and decompensation over the last year before the crime or these events around it, you know, he had another involuntary psychiatric hold, he had shot himself in the foot,

[00:27:46] Speaker 04:
There's testimony that he was out of his mind and other things.

[00:27:51] Speaker 04:
Why wouldn't that have been?

[00:27:55] Speaker 04:
potentially powerful evidence to address or contextualize all the things that had happened of the evidence of uncharged crimes and aggravation, the other carjackings, you know, shooting and killing another person.

[00:28:09] Speaker 04:
Tell me why you don't think that's deficient for not having introduced, if not investigated, that kind of evidence.

[00:28:18] Speaker 00:
Well, simply put, because it could have cut both ways,

[00:28:22] Speaker 00:
And counsel could now be arguing today that such evidence cut against the mitigation strategy, presenting additional evidence of firearms use, even though it was self-injury, would further a narrative of criminality with firearms.

[00:28:37] Speaker 00:
But also, all of this evidence, the crime specifically and the uncharged acts, were all very goal-oriented.

[00:28:45] Speaker 00:
were all very specific with their intent.

[00:28:49] Speaker 00:
And I think it would be hard sell to say that he was decompensating and didn't know what he was doing when the record is beyond dispute, that he was looking for rims, and he shot somebody to take them, and then he tried to sell them.

[00:29:04] Speaker 01:
But in the face of such compelling, aggravating circumstances, is it a reasonable choice not to throw what you have

[00:29:13] Speaker 01:
in an attempt to sort of, as Judge Sanchez says, contextualize it?

[00:29:18] Speaker 01:
Well, counsel was attempting... You've got to come up with an excuse, right, in the face of such serious conduct.

[00:29:25] Speaker 00:
And I think counsel specifically made that argument during closing.

[00:29:29] Speaker 00:
He said, this year, one year aberrant behavior of all of these aggravating offenses began with Mr. Brown checking himself in for a drug-induced psychosis.

[00:29:41] Speaker 00:
And that is the argument to be made without dwelling too much upon it and parading a set of facts that perhaps could break it too far.

[00:29:53] Speaker 01:
So you're saying there was a balance in terms of how far to push and so that's a reasonable tactical choice?

[00:30:00] Speaker 00:
Yes, Your Honor.

[00:30:01] Speaker 00:
I think it is certainly a tactical choice and the question is

[00:30:06] Speaker 00:
Could all fair-minded jurists agree that it was unreasonable to strike that balance?

[00:30:13] Speaker 00:
And I think the California Supreme Court correctly answered that question in the negative.

[00:30:20] Speaker 04:
Now, on the investigation side, obviously the council had some knowledge of drug use and that involuntary hospitalization with Dr. Chu.

[00:30:32] Speaker 04:
What does the record tell us one way or the other about the extent to which other things were investigated as they ended up being in the state habeas petition evidence?

[00:30:44] Speaker 00:
The record is deficient in terms of the scope of the investigation.

[00:30:49] Speaker 00:
As I noted in the brief, there's no declaration from counsel as to what exactly he looked at.

[00:30:54] Speaker 00:
And while that's not the only way to establish the scope of the investigation, none of the other factors are there.

[00:31:03] Speaker 00:
For example, there was a painter investigator, a defense investigator.

[00:31:08] Speaker 00:
There's no declaration from him.

[00:31:10] Speaker 00:
As the defense, as the district court noted, many of the witnesses who have given declarations were in fact interviewed by that investigator.

[00:31:22] Speaker 00:
I think there are a handful, maybe five declarations that say we didn't speak to counsel, we didn't speak to defense counsel prior to Trier.

[00:31:33] Speaker 00:
However, at least two of those witnesses

[00:31:38] Speaker 00:
Jeanette Bender and and that Annette and and Jenny they they both gave statements to the defense investigator painter prior to trial so

[00:31:50] Speaker 00:
The record doesn't show any deficiencies in the investigation.

[00:31:54] Speaker 00:
It's all purely speculative.

[00:31:56] Speaker 00:
And as I mentioned, maybe five of the subheadings in this argument all begin with counsel new.

[00:32:03] Speaker 00:
And so really, this is just a claim that counsel should have made a different argument, presented the evidence differently during the penalty phase closing.

[00:32:14] Speaker 00:
But that's just a tactical decision.

[00:32:15] Speaker 00:
And the Supreme Court has held that

[00:32:18] Speaker 04:
Defense counsel has constitutionally protected independence and that his decisions strategic decisions like this are nearly unassailable Let me ask you this about I think somewhere in the briefing there was a discussion about dr. Kaser Boyd Recommending further neurological testing now and she wasn't qualified to opine about organic brain damage or other things herself but I think she had recommended further testing and

[00:32:45] Speaker 04:
And then there's this dr. Nono report or testing at least That it doesn't seem to me to have been presented to the to the court itself.

[00:32:56] Speaker 04:
Can you?

[00:32:58] Speaker 04:
Was there something that council should have done with further testing or did that happen?

[00:33:03] Speaker 04:
With dr. Nono or what can you speak to those issues?

[00:33:06] Speaker 00:
Yes, your honor the record citation that

[00:33:11] Speaker 00:
Mr. Brown gives in his opening brief is to an exchange on the record with dr. Kaiser Boyd saying she doesn't know she couldn't conclusively rule out organic brain damage and that additional testing would have to be done to determine whether he had organic brain damage counsel certainly could have assumed that

[00:33:28] Speaker 00:
you know, and through his hypotheticals of the way to proceed that additional testing would have established organic brain damage but decided against pursuing that evidence for multiple reasons, one of which is, as I mentioned, the risk of presenting Mr. Brown as irredeemable.

[00:33:47] Speaker 00:
But also, as we know from habeas proceedings, when Dr. Watson evaluated Mr. Brown for

[00:33:56] Speaker 00:
uh, organic brain damage, he determined that Mr. Brown had an IQ of 90.

[00:34:02] Speaker 00:
So going into trial, the record was that Mr. Brown had an IQ of 77, which I think people can, uh, the lay jurors can, can comprehend.

[00:34:12] Speaker 00:
It's a number, you know, that contextualizes things.

[00:34:16] Speaker 00:
Whereas organic brain damage could risk establishing somebody as irredeemably violent, naturally violent, but also having an IQ of 90, and perhaps an intelligent violent person by nature.

[00:34:30] Speaker 04:
I mean, we have cases in which we have found under EDPA, I believe, that if council is aware that there's a possibility of organic brain damage and doesn't take steps to further investigate, that's not a reasonable investigation.

[00:34:46] Speaker 04:
I mean, I take your point.

[00:34:47] Speaker 04:
I think maybe what you're saying is with Dr. Watson that there may not be prejudice in the end because what he later found was a higher IQ score and mild organic brain damage.

[00:34:59] Speaker 04:
But certainly what seemed to at least suggest to me that if there was a possibility of this avenue of mitigation evidence or something that you ought to pursue it and look further into it now.

[00:35:12] Speaker 00:
Well, first of all, we don't know that he didn't.

[00:35:15] Speaker 00:
My point with the record citation in the opening brief to Dr. Kaiser Boyd is that there's, she has no declaration saying I told counsel to do these acts and he didn't.

[00:35:24] Speaker 00:
So, counsel may have in fact had Mr. Brown evaluated for organic brain damage and decided not to pursue that as an avenue of defense either at guilt or mitigation and didn't turn that over and we wouldn't know that.

[00:35:40] Speaker 00:
And again, that speaks to the lack of declaration from either defense counsel

[00:35:45] Speaker 00:
various co-councils or the defense investigators.

[00:35:51] Speaker 01:
What was Dr. Nuno's findings?

[00:35:55] Speaker 00:
Dr. Nuno, I believe he administered the tests that Dr. Kaiser Boyd reviewed and I believe that was the 77 IQ with below average intelligence.

[00:36:09] Speaker 01:
Right, but we don't have his

[00:36:10] Speaker 01:
I don't believe we have the scope of his details of his findings in the record.

[00:36:15] Speaker 00:
I don't believe the raw data is in the record, Your Honor, no.

[00:36:21] Speaker 04:
I mean, is it reasonable to infer that if it was not submitted to the court that it was not so favorable to Mr. Brown?

[00:36:28] Speaker 04:
Is that something that we would

[00:36:32] Speaker 04:
could take note of in some kind of way, or does it not play one way or the other?

[00:36:36] Speaker 00:
Well, under the presumption of competence, in Burt v. Titlow, the Supreme Court said that that presumption cannot be overcome absent evidence.

[00:36:46] Speaker 00:
So it's certainly, it can be viewed as the court said, or it could just be viewed as failing to meet your burden of establishing deficient performance.

[00:36:59] Speaker 01:
Right.

[00:37:00] Speaker 01:
So as I understand it, Dr. Kaiser-Brown said she did review some tests, but it wasn't clear exactly what she reviewed or the scope of that.

[00:37:10] Speaker 01:
Is there an indication in the record that maybe Dr. Nuno had made more extensive findings that she didn't have access to, or we just don't know one way or the other?

[00:37:20] Speaker 00:
No.

[00:37:20] Speaker 00:
She said that she reviewed Dr. Nuno's testing.

[00:37:23] Speaker 00:
I don't know the scope of what Dr. Nuno's did and what he gave to her or to defense counsel.

[00:37:28] Speaker 00:
No, Your Honor.

[00:37:31] Speaker 00:
In sum, on this claim, this claim is just a second guessing in hindsight of tactical decisions.

[00:37:40] Speaker 00:
There's nothing that counsel didn't know.

[00:37:42] Speaker 00:
He made a considered and deliberate strategic choice to challenge the aggravating offenses, present Mr. Brown as having a one-year aberration, but being able to be redeemable, being treated.

[00:37:58] Speaker 00:
He had childhood trauma.

[00:38:00] Speaker 00:
with mental health issues that had never been addressed, and he had substance abuse issues that could be addressed.

[00:38:06] Speaker 00:
And counsel's argument, Mr. Brown's argument, presupposes that there was some sort of pitch that he could have made that would have definitely been, that would have worked.

[00:38:19] Speaker 00:
But I don't think that that is necessarily true.

[00:38:23] Speaker 00:
And especially at the time, this trial occurred in 1991,

[00:38:29] Speaker 00:
1991, 1992.

[00:38:31] Speaker 00:
Council was definitely in the best position to determine how arguments would be received by the jury, by the public.

[00:38:42] Speaker 03:
And, you know, today... Do we know why we don't know, in the sense that was counsel available later when this case... No, there's no explanation for why.

[00:38:54] Speaker 00:
We just don't know.

[00:38:54] Speaker 03:
There's just nothing there.

[00:38:58] Speaker 04:
What about the prosecutor's argument about calling him a sociopath?

[00:39:05] Speaker 04:
Yes, your honour.

[00:39:07] Speaker 04:
It seems pretty thin-groomed.

[00:39:09] Speaker 04:
I think the district court said, well, it was something you can reasonably infer from the evidence, but that seems a little bit of a stretch to me, potentially, unless it's being thought of in a colloquial way, because no one had actually testified that he

[00:39:27] Speaker 04:
was properly diagnosed with that condition or actually having antisocial personality disorder.

[00:39:35] Speaker 04:
Was there error or some problem with the introduction of that argument at the trial?

[00:39:42] Speaker 00:
So the argument in the state court was that counsel was ineffective for failing to object to that prosecutor's statement.

[00:39:54] Speaker 00:
State law allows it because jurors understood it to be a colloquial term.

[00:40:01] Speaker 00:
And more specifically, I believe the court was referring to the district court found that there was some evidentiary support for it.

[00:40:08] Speaker 00:
And I believe it was Dr. Kaiser Boyd was asked about ADHD being, excuse me, ADHD, I wrote it down, but I lost it.

[00:40:24] Speaker 00:
of predisposing ADHD predisposing people to certain

[00:40:31] Speaker 00:
behavioral issues, and she gave a list of them saying it's not just sociopathy.

[00:40:37] Speaker 00:
So directly from that statement, which was made during cross-examination, that it could be predisposed, ADHD could predispose one to sociopathy, in context of all of the evidence, the charged offense, the uncharged offense, everything, it was certainly within the realm of proper argument

[00:41:00] Speaker 00:
for the prosecutor to make.

[00:41:03] Speaker 00:
And even so, defense counsel could have decided against making an objection and highlighting that issue in the term sociopath to the jury.

[00:41:18] Speaker 00:
Unless the court has any other questions, I know that there was some discussion of incompetence to stand trial.

[00:41:28] Speaker 00:
And there's just simply no evidence of that.

[00:41:31] Speaker 00:
Nothing from defense counsel, nothing in the record that they point to, nothing from any of the experts who examined Mr. Brown.

[00:41:41] Speaker 00:
In fact, that Mr. Brown was able to cooperate with Dr. Nunoz and others in the evaluation shows that he was furthering his defense.

[00:41:52] Speaker 00:
He was assisting in the furtherance of his defense.

[00:41:58] Speaker 00:
know that council wanted to talk about the Batson issue, but wasn't able to do so.

[00:42:03] Speaker 03:
Timing means that you won't actually talk about it until after you're done.

[00:42:06] Speaker 03:
So as a preview of coming attractions, what would you anticipate saying in response to the anticipated argument about Batson?

[00:42:15] Speaker 00:
The state court recently rejected it as meritless.

[00:42:19] Speaker 00:
There were three black jurors and this black juror wrote on the voir dire forms that he

[00:42:28] Speaker 00:
would only impose a death penalty if proven beyond a reasonable doubt.

[00:42:32] Speaker 00:
During voir dire, he said that he would only impose it for cold-blooded killers and sort of push back on the notion that the standard was different and was resistant to the notion that this was charged as a felony murder.

[00:42:50] Speaker 00:
And as I noted, we don't know, counsel at the time, the prosecutor at the time did not know if Mr. Brown would testify or what the defense would be.

[00:42:59] Speaker 00:
And so he gave a hypothetical about an accidental killing during a robbery to which this juror was resistant, demonstrated some hesitancy.

[00:43:12] Speaker 00:
So all of these factors gave rise to a legitimate nonracial belief that the juror was not appropriate for this jury.

[00:43:25] Speaker 00:
He, the prosecutor, moved to exclude him for cause.

[00:43:30] Speaker 00:
The court denied that because the jurors said he could faithfully oppose the law, which... We get that a lot.

[00:43:38] Speaker 03:
The process of... It's morbid, but death qualification of a jury produces some strange questions and answers.

[00:43:46] Speaker 00:
So, against the background of the prosecutor having accepted the panel with a different black juror on it, and the host of reasons cited in our brief, there's just no prima facie case, or excuse me, the California Supreme Court recently determined that Mr. Brown had not presented a Batson violation.

[00:44:10] Speaker 04:
It resolved it, I believe, at step one, that there was no prima facie basis.

[00:44:14] Speaker 00:
In the trial court, yes, Your Honor.

[00:44:17] Speaker 04:
Right.

[00:44:18] Speaker 04:
Were there other prospective jurors that were asked or gave a similar answer about being leery of imposing the death penalty for something that might be deemed accidental or not intentional?

[00:44:32] Speaker 00:
There was at least one other juror who received the hypothetical of an accidental killing and gave a similar answer of hesitancy and I believe was also excused, but was not black.

[00:44:46] Speaker 00:
It doesn't appear that we do.

[00:44:49] Speaker 01:
Thank you, counsel.

[00:44:49] Speaker 01:
Thank you.

[00:44:49] Speaker 01:
Respondent Smith.

[00:44:50] Speaker 00:
Thank you.

[00:45:15] Speaker 02:
Go ahead, counsel.

[00:45:16] Speaker 02:
Your Honor, may I start with the Batson claim, or should I respond to the IAC claim that was previously addressed?

[00:45:27] Speaker 01:
You wanted to talk a little bit about Batson, so I wanted to make sure that you get a chance to do that before your time runs out.

[00:45:31] Speaker 01:
I did, Your Honor.

[00:45:31] Speaker 02:
I will start with that.

[00:45:34] Speaker 02:
All right, Your Honor.

[00:45:35] Speaker 02:
In 1991, the state trial court

[00:45:37] Speaker 02:
Applied California law which is Wheeler strong likelihood standard to find that the prima facie showing was not made at step one of a bats and Wheeler challenge as to prospective juror sergeant Richard a but Wheeler strong likelihood standard is

[00:45:54] Speaker 02:
this court knows contrary to Batson's mere inference standard which has been clearly established federal law since 1986.

[00:46:02] Speaker 02:
The district court in reviewing the last reason state court decision on this case on this claim as it must under Yeltsin versus Nunamaker said and I quote

[00:46:17] Speaker 02:
petitioners council that the state court found that petitioners council had failed to make a prima facie showing sufficient to require the state to come forward

[00:46:26] Speaker 02:
with a non-discriminatory purpose in seeking the peremptory excusal of juror Armfield.

[00:46:32] Speaker 02:
Batson constituted clearly established federal law at the time of petitioner's trial.

[00:46:38] Speaker 02:
And this is at 1ER211, where the district court then continued to erroneously equate the strong likelihood standard with mere inference

[00:46:48] Speaker 02:
in finding in 2007, 2017, I'm sorry, that Wheeler and Batson are essentially the same standards without acknowledging that in 2005 the Supreme Court had held otherwise.

[00:47:03] Speaker 02:
Therefore, ad pedeference doesn't apply to this claim under 2254D1, and this claim ought to be reviewed de novo.

[00:47:14] Speaker 04:
I thought the California Supreme Court, don't we look at the data at which the California Supreme Court summarily denied the petition as the last reasoned decision, which presumably would incorporate the U.S.

[00:47:32] Speaker 04:
Supreme Court's intervening clarification?

[00:47:36] Speaker 02:
Your honor, that's not what the district court did here, and there was no dispute amongst the parties that the district court got it wrong.

[00:47:43] Speaker 02:
That said, I think the district court didn't get it wrong because it is in line with the Supreme Court's holding and yields, which is that where there's been one reason state judgment rejecting a federal claim, which this was because it was raised under Batson and Wheeler,

[00:47:58] Speaker 02:
later unexplained orders like the CSC summary denial on the merits, upholding that judgment or rejecting the same claim rest upon the same ground.

[00:48:09] Speaker 02:
So we look through from the 2008 CSE denial to that 1991 reasoned decision and should find that it was contrary to an unreasonable application of clearly established federal law.

[00:48:21] Speaker 04:
But the look through doctrine applies, I think, direct appeal.

[00:48:25] Speaker 04:
You look through.

[00:48:25] Speaker 04:
But this was an original habeas petition filed with the California Supreme Court.

[00:48:30] Speaker 04:
And so, in that sense, even though it was a summary denial, we infer within it how it would have approached a lot of these issues.

[00:48:39] Speaker 04:
Isn't that so?

[00:48:41] Speaker 04:
The look-through doctrine, in your view, would go past the summary denial all the way back to the trial court itself?

[00:48:48] Speaker 02:
It goes to the last reason state court decision.

[00:48:50] Speaker 02:
The last reason state court decision on this constitutional claim was in 1991.

[00:48:55] Speaker 02:
There's no...

[00:48:56] Speaker 04:
And there was no issue, it was not raised on direct appeal?

[00:49:00] Speaker 02:
It was not raised on direct appeal, Your Honor, and for no strategic reason.

[00:49:05] Speaker 02:
And there is information in the record, there's extensive briefing for why it ought to be excused for direct appeal counsel's failure to raise it.

[00:49:17] Speaker 02:
That issue was not addressed despite the extensive briefing ordered by the district court, by the district court, and so I would ask respectfully for a remand to the district court to address that issue of this Batson, this otherwise meritorious step one denial of Batson to be addressed after a finding that the failure to raise it on appeal was excused either by

[00:49:43] Speaker 02:
cause and prejudice or miscarriage of justice, which we argue in our briefing.

[00:49:48] Speaker 04:
What do you think was the reasonable inference raised that this was a race-based exercise of the peremptory challenge?

[00:49:56] Speaker 02:
Your honor, I think that Brown's counsel makes an argument that there was a statistical disparity here, that comparative juror analysis also reveals disparate, not only disparate questioning, but disparate treatment of hardships between black and non-black jurors, disparate challenges for cause, and then disparate peremptory strikes.

[00:50:19] Speaker 02:
Obviously, there are at least two white jurors who also

[00:50:23] Speaker 02:
said on the record during voir dire that they needed to be convinced beyond a reasonable doubt to vote for death and in the penalty phase.

[00:50:33] Speaker 02:
It's no different from what Sergeant Armfield, Sergeant Richard A., I apologize, said during his voir dire.

[00:50:40] Speaker 02:
Sergeant Armfield was not confused to the extent that he

[00:50:45] Speaker 02:
said something like, this is a loaded question in response to something the DA said to him.

[00:50:51] Speaker 02:
Cases like Miller-L and Flowers v. Mississippi make clear that disparate questioning that rises sometimes to the level of trickery as it did in this trial during Vardier can be an effort to mask racial discrimination, just like peremptory strikes can be.

[00:51:08] Speaker 02:
So that actually, his confusion, his manufactured bias

[00:51:12] Speaker 02:
which the trial court rejected in the first instance as not biased at all by saying the fact that this is a loaded question actually is not anything to malign the DA.

[00:51:23] Speaker 02:
He told counsel this, and yet the district court cites this as one of the reasons for finding the peremptory strike was not motivated by race.

[00:51:36] Speaker 02:
Again, I'm giving you all these examples, Your Honor, but at step one,

[00:51:40] Speaker 02:
this court in cases like Finn have made clear that if you're looking through the record to find excuses to rebut the non-onerous inference at step one, then we've already got it wrong.

[00:51:55] Speaker 02:
We're already applying the Wheeler strong likelihood challenge.

[00:51:59] Speaker 02:
I see I'm out of time, but I think my colleagues have any additional questions.

[00:52:08] Speaker 03:
We used up your rebuttal time because we wanted to ask about Batson.

[00:52:13] Speaker 03:
This is a serious case.

[00:52:15] Speaker 03:
Are there other issues that you want us to hear from you about?

[00:52:18] Speaker 03:
I don't invite you another 10 minutes, but I want to understand what you think our focus should be on.

[00:52:26] Speaker 02:
Your Honor, thank you for that.

[00:52:28] Speaker 02:
I am grateful for the privilege of responding.

[00:52:32] Speaker 02:
I want to make three quick points.

[00:52:34] Speaker 02:
I think the key issues here I see are

[00:52:37] Speaker 02:
the penalty phase, the mitigation presentation by trial counsel, and this Batson challenge.

[00:52:46] Speaker 02:
I want to make three quick points about the ineffectiveness at penalty phase in responding to opposing counsel.

[00:52:54] Speaker 02:
One is that when he said jurors don't look kindly on explanations of drug use, I think that's contrary to what

[00:53:03] Speaker 02:
Supreme Court held in Williams versus Taylor what this court held in Correll versus Ryan which is the opposite it says jurors need explanation when there's evidence of things like drug use and Mental illness that cut both ways These things are double-edged swords and that explanation is key it's not just a presentation you just can't dump those words on a jury and

[00:53:27] Speaker 02:
ask them to draw their own common sense conclusions or look it up in dictionary.com.

[00:53:32] Speaker 02:
They need an explanation.

[00:53:33] Speaker 02:
The second thing I want to say really quickly is that you don't need a declaration of trial counsel to establish prejudice or establish deficient performance in this case.

[00:53:43] Speaker 02:
I cited several parts of the record, the trial record itself, where trial counsel makes clear what his intent and what his strategy is.

[00:53:52] Speaker 02:
He uses words like

[00:53:54] Speaker 02:
this is my

[00:54:05] Speaker 02:
It was available to trial counsel as early as Dr. Nono's testing.

[00:54:14] Speaker 02:
There was evidence that the pre-trial testing showed 98% likelihood of organic brain dysfunction based on the Stroop test, which is particularly sensitive to frontal lobe dysfunction.

[00:54:27] Speaker 02:
And that's at 5 ER 695, 699 to 700.

[00:54:32] Speaker 02:
And Dr. Stewart and Watson

[00:54:35] Speaker 02:
reinforce and emphasize that information in 4ER-592-93, 5ER-684.

[00:54:43] Speaker 02:
I respectfully ask this court to reverse and remand to the district court.

[00:54:51] Speaker 01:
Thank you very much, counsel, to both sides for your very helpful arguments this afternoon.

[00:54:57] Speaker 01:
The matter is submitted and we'll issue a decision in due course.

[00:55:01] Speaker 01:
Court is adjourned.