[00:00:00] Speaker 02:
Yes, Your Honor, I'd like to reserve five minutes of my time.

[00:00:03] Speaker 03:
We'll try to help you, but watch the clock, please.

[00:00:05] Speaker 02:
Yes, sir.

[00:00:08] Speaker 02:
On the fourth day of Chuck Reinhart's capital trial, his defense counsel's conflict of interest, which had been festering since the beginning of the case,

[00:00:16] Speaker 02:
resulted in the actual breakdown of the adversarial process.

[00:00:20] Speaker 02:
To understand that breakdown, it's helpful to begin at the first day of trial when, in defense counsel's opening statement, he told the jury that Christina George was the key to the state's case, that the state's whole case rested on Christina George's testimony.

[00:00:39] Speaker 02:
Then, on the fourth day of trial, the prosecutor informed the court that Mr. Larson had interviewed Ms.

[00:00:45] Speaker 02:
George

[00:00:46] Speaker 02:
shortly after the arrest of our client in this case and her arrest in the jail without a defense investigative witness present and without a tape recorder because this was 1995 and of course we all had tape recorders back then.

[00:01:03] Speaker 02:
At that point Mr. Larson ceased to advocate for Mr. Reinhart and began to advocate for himself.

[00:01:10] Speaker 02:
He told the court he didn't know that Ms.

[00:01:12] Speaker 02:
George was a defendant in the case when he went to talk to her.

[00:01:15] Speaker 02:
He said he had

[00:01:16] Speaker 02:
Asked her if she was represented and if she wanted to talk to him he said he was happy to turn over his notes of the meeting to the state and he Conceited that he did not record the the interview and in fact when mr. Larson went to the jail and Filled out his jail slip for to see miss George as his relationship to her he said attorney and

[00:01:42] Speaker 02:
The prosecutor then moved for a mistrial.

[00:01:45] Speaker 02:
Mr. Larson, still advocating only for himself and not for Mr. Reinhart, said nothing.

[00:01:53] Speaker 02:
The court took a recess and in chambers asked Ms.

[00:01:57] Speaker 02:
George to answer questions, which were asked by the prosecutor and

[00:02:02] Speaker 02:
the court, but there were no questions from Larson, the defense counsel.

[00:02:08] Speaker 04:
So Ms.

[00:02:09] Speaker 04:
Hall, if we agree with you that that was obviously not best practice on the part of Larson, and if we agree that it was more than that, it was deficient performance under prong one of Strickland, don't you still need to satisfy prong two by establishing prejudice?

[00:02:27] Speaker 02:
This claim, claim D in our brief, your honor, is not a Strickland claim.

[00:02:33] Speaker 02:
This is a confrontation and conflict of interest claim.

[00:02:39] Speaker 02:
So although even in Strickland, the court refers to the Sullivan test.

[00:02:45] Speaker 02:
which is that when there is a present, active, actual conflict, the court doesn't assess for prejudice.

[00:02:51] Speaker 04:
Sullivan is about concurrent representation of two different clients, right?

[00:03:00] Speaker 04:
Sullivan itself involved concurrent representation of two different clients, didn't it?

[00:03:04] Speaker 02:
That's right, Your Honor.

[00:03:05] Speaker 02:
Sullivan did.

[00:03:06] Speaker 02:
But what the court's analysis was there, and Sullivan, of course, is

[00:03:12] Speaker 02:
informed by the court's Sixth Amendment jurisprudence generally.

[00:03:16] Speaker 02:
Strickland, Sullivan, Cronick, all of those cases with Strickland.

[00:03:20] Speaker 02:
Strickland and Cronick decided on the same day.

[00:03:22] Speaker 02:
And the court's jurisprudence, what the court is focusing on is not that the case is about two co-defendants.

[00:03:30] Speaker 02:
What the court is focusing on in those cases is whether the conflict is concurrent, whether it's active and present.

[00:03:36] Speaker 02:
Versus a past conflict so for so because those two co-defendants are Both in the case, and they're being represented at the same time.

[00:03:47] Speaker 03:
That's the concurrent representation, but council I respect.

[00:03:53] Speaker 03:
I don't think you're answering my colleagues question the My understanding of our jurisprudence particularly under Sullivan and you got to have concurrent

[00:04:02] Speaker 03:
representation to have the kind of conflict you're talking about.

[00:04:05] Speaker 03:
And in this case, although what was done with George was highly irregular, her testimony that I think the Arizona Supreme Court referred to it as a withering

[00:04:17] Speaker 03:
cross-examination and that also occurred with the district court and ultimately get down to a prejudice analysis.

[00:04:24] Speaker 03:
In what way was your client truly impacted by the admittedly unusual approach of counsel and as you know in these kinds of cases this isn't perfection these are human interactions and when you have the level of cross-examination where Mrs. George had virtually no credibility at all

[00:04:45] Speaker 03:
If you look at the testimony, it's hard for me to see where there's any prejudice.

[00:04:50] Speaker 03:
What am I missing?

[00:04:51] Speaker 02:
The record itself shows the prejudice, Your Honor, because in closing argument, the prosecutor points at Larson and says, literally or figuratively, points at Larson and says, this is your best evidence that she is telling the truth.

[00:05:07] Speaker 02:
Larson has already told the jury, if you don't believe Christina George, then you don't convict my client.

[00:05:12] Speaker 02:
The prosecutor then tells the jury,

[00:05:15] Speaker 02:
Larson is the reason you have to believe Christina George because she told him this and of course we know now that that's not at all what she told him from the evidence that was developed in habeas, but but just based on the record alone and And if you conduct a prejudice analysis the prejudice is that Larson becomes a witness against his client he is he might as well have that exhibit sticker on his head in the courtroom because

[00:05:40] Speaker 02:
The prosecutor tells the jury, this is your best evidence.

[00:05:43] Speaker 02:
This is why you believe Christina.

[00:05:44] Speaker 03:
And you don't believe that the cross-examination of George and all that occurred basically pulls him, I know that's how he was characterized in the concluding comments, but isn't it pretty clear that he wasn't that?

[00:06:01] Speaker 02:
That he wasn't the best evidence?

[00:06:02] Speaker 03:
He wasn't, in fact, her witness, basically.

[00:06:05] Speaker 02:
No, Your Honor, because Larson now, because of the conflict, he has to avoid, and he does, asking Christina George about her first interview with the prosecution, which was consistent with what she told him, which was that Nadu was the one who told her that he threw rocks on the victim and killed the victim.

[00:06:25] Speaker 02:
And so the cross-examination is far from withering.

[00:06:29] Speaker 02:
It's tiptoeing around the things that Larson now can't ask George.

[00:06:34] Speaker 02:
And he has the notes of his interview that he could impeach her with.

[00:06:38] Speaker 03:
What was the Arizona Supreme Court referring to when it said that the cross examination was withering?

[00:06:46] Speaker 03:
They were just dreaming?

[00:06:48] Speaker 02:
Well, I mean, and again, Your Honor, you don't get to that point because

[00:06:53] Speaker 02:
The conflict is a conflict.

[00:06:55] Speaker 02:
And regardless of what they might have done to put a band-aid on that issue, when there is a conflict, his obligation was to withdraw.

[00:07:05] Speaker 02:
The prosecutor recognized it when she moved for the mistrial.

[00:07:08] Speaker 01:
I guess I think that argument would have more sway if the only basis for cross-examining that witness was her prior interview with the defense counsel.

[00:07:16] Speaker 01:
But that wasn't the only basis.

[00:07:18] Speaker 01:
And it seems like your argument wants us to ignore the fact that there were other reasons

[00:07:22] Speaker 01:
to attack her credibility that stands separate from that interview.

[00:07:28] Speaker 02:
Your Honor, when the case is framed, and for the prejudice analysis, the case is framed as it's all about Christina George.

[00:07:37] Speaker 01:
I know that that's in the opening statement.

[00:07:39] Speaker 01:
I mean, you're talking about the attorney's argument about the case.

[00:07:42] Speaker 01:
But of course, we all know attorney argument is not evidence.

[00:07:44] Speaker 01:
So I'm talking about the evidence and what they actually got out, elicited from her on both direct and cross.

[00:07:52] Speaker 01:
And it seems to me that the strategy for cross-examining her and poking holes in her credibility was not limited to the issue that's related to the interview she had with defense counsel.

[00:08:04] Speaker 02:
That, though, Your Honor, doesn't mean that it wasn't limited.

[00:08:07] Speaker 02:
And that's the whole problem with the conflict is that it goes to the structure of the representation.

[00:08:14] Speaker 02:
And so to say that Larson went on to do something

[00:08:18] Speaker 02:
even though he had both hands tied behind his back, because he can't go to the one thing that's going to make the most difference, which is her first statement that she made, which inculpates Nadu, the co-defendant, and for the most part exculpates Mr. Reinhart from involvement in the homicide.

[00:08:36] Speaker 02:
Larson can't go to that.

[00:08:38] Speaker 02:
He can't ask George about that because he has the conflict.

[00:08:44] Speaker 02:
And regarding just the conflict claim itself, which is claim D in the brief, the trial court also says, when they come back from the recess for the court to consider this, and the prosecutor says, now that she's looked at the notes that Larson has given her, she suddenly doesn't want to move for another mistrial or insist on the mistrial, and she

[00:09:10] Speaker 02:
tells the court, I think I've come up with a way that we can salvage this case.

[00:09:14] Speaker 02:
This wasn't about salvaging the case.

[00:09:16] Speaker 02:
This was about recognizing that once there's a conflict of interest, it doesn't matter how hard you try.

[00:09:24] Speaker 02:
When I ran my dad's company car into a barbed wire fence in high school, and I was so upset afterwards, and he said, it's an accident.

[00:09:35] Speaker 02:
That's why they call them accidents.

[00:09:37] Speaker 02:
This was a conflict.

[00:09:38] Speaker 02:
That's why they call them conflicts.

[00:09:40] Speaker 02:
It doesn't matter if you come back and wither.

[00:09:43] Speaker 02:
It doesn't matter if you come back and ask a few questions, but successfully tiptoe around the one statement that would have actually been helpful.

[00:09:54] Speaker 01:
And again, that argument depends on us agreeing with you that this particular part that you want to focus on was so pivotal.

[00:10:02] Speaker 01:
If we don't agree with that, what happens to your argument?

[00:10:06] Speaker 02:
that it was pivotal for him to be represented by?

[00:10:09] Speaker 01:
No, that piece of what he did or didn't say, I'm sorry, what the witness did or didn't say in the interview with defense counsel previously, that the being able to explore that and cross-examine on that particular thing, if we don't think that that was so pivotal to the entire record and what was going to happen in this case, then where does your argument land?

[00:10:34] Speaker 02:
Your honor, the difference that that makes is that Larson, the difference it makes is Larson's obligation would be, is to withdraw, withdraw or the court declare a mistrial.

[00:10:47] Speaker 03:
And so once he- And forgive me, I'll basically interrupt, why?

[00:10:53] Speaker 03:
Why was that his obligation?

[00:10:55] Speaker 02:
Because he is now the only witness that can testify to the jury that

[00:11:04] Speaker 03:
As to what Christina George said shortly after the crime and you're saying well, we talked a little bit before about Sullivan and concurrent representation.

[00:11:13] Speaker 03:
I gather you don't agree with that, but he wasn't representing two different people.

[00:11:17] Speaker 03:
So you're saying there's a conflict.

[00:11:20] Speaker 03:
And you're saying that notwithstanding the later cross-examination, that that per se, what was done was enough to have a mistrial, is that correct?

[00:11:32] Speaker 02:
It is, Your Honor.

[00:11:33] Speaker 04:
And that there's no need for a prejudice inquiry because of the conflict?

[00:11:37] Speaker 02:
That's correct.

[00:11:37] Speaker 02:
So to read, if you read Sullivan that narrowly, that the requirement is

[00:11:45] Speaker 02:
you know, that the structure of the trial is fine.

[00:11:48] Speaker 02:
The right to counsel is still performing its role of being the red line, the barrier that protects all the other rights.

[00:11:55] Speaker 02:
Then I could represent a capital defendant at trial and represent the victim's family members at the same time.

[00:12:02] Speaker 02:
And that would only be a conflict if something came up to, you know.

[00:12:05] Speaker 03:
That's actual representation and that's I think we're struggling with that because you don't have two actual representations here, do you?

[00:12:13] Speaker 02:
You do your honor because Larson is a witness at that point and so he is representing essentially himself as a witness in the case representing himself in a Sullivan context.

[00:12:29] Speaker 02:
Yes, your honor at as a witness.

[00:12:31] Speaker 02:
So not as another co-defendant, but as a witness.

[00:12:34] Speaker 02:
So once he's a witness in the case, he has interests.

[00:12:38] Speaker 03:
You're expanding Sullivan and its progeny beyond actual representations to where, if there's a conflicting interest, you become your own client?

[00:12:49] Speaker 03:
Is that basically what you're saying?

[00:12:50] Speaker 03:
Is that what Sullivan gets to?

[00:12:51] Speaker 02:
It goes back, Your Honor, Sullivan, but what the courts

[00:12:58] Speaker 02:
point is not whether there are conflicting clients, it's whether there are conflicting interests.

[00:13:05] Speaker 04:
So whatever the- But that's not what Sullivan says.

[00:13:07] Speaker 04:
And reading Sullivan that way is hard to reconcile with Micken's against Taylor, isn't it?

[00:13:13] Speaker 04:
Because in the successive representation, you still have an interest, right?

[00:13:18] Speaker 04:
So there are multiple interests in that context, but the court said you don't formally have competing representations, so the Sullivan rule isn't triggered by that, right?

[00:13:28] Speaker 02:
Well, the difference, Your Honor, in Mickens is that at that point, the victim in that case is dead.

[00:13:36] Speaker 02:
And that was the former client.

[00:13:38] Speaker 02:
So where the former client essentially has no interests at that point, then the court said it's a different analysis.

[00:13:50] Speaker 02:
And you have the prejudice analysis.

[00:13:51] Speaker 02:
But here, there are two active interests.

[00:13:54] Speaker 02:
the interests that the lawyer is essentially serving two masters in the courtroom and one is that he has so severely damaged the structure of this trial that the prosecutor is moving from this trial and the judge is realizing yep that's where we are.

[00:14:11] Speaker 02:
that's pretty much where we are and that they can come back and salvage this thing all by the way without ever anyone saying to Mr. Reinhart do you understand what's going on here do you understand what your lawyer did what the consequences are do you know you know is there a

[00:14:29] Speaker 02:
The court never appointed a non-conflicted counsel to advise Mr. Reinhart.

[00:14:34] Speaker 02:
So if he got any advice at all, it was from the conflicted lawyer.

[00:14:37] Speaker 02:
And clearly, every interest in the courtroom is not to have a mistrial.

[00:14:41] Speaker 04:
Right.

[00:14:41] Speaker 04:
But I think that the difficulty here is that everything you're saying seems like a plausible application of Sullivan.

[00:14:51] Speaker 04:
But the facts in Mickens also seemed like a plausible

[00:14:57] Speaker 04:
application of Sullivan and the court said no to that and for us to reverse or for us to be a reverse denial of habeas relief under 24 d we need to say that There was some clearly established rule from the Supreme Court and in light of the cases we have I'm just not sure how we can say that the clearly established law is Your honor is Sullivan

[00:15:25] Speaker 02:
that where there is an ongoing competing interest.

[00:15:30] Speaker 02:
And that was the case here.

[00:15:32] Speaker 02:
Because Larson still is serving when he doesn't question Christina George, when he doesn't agree to the mistrial.

[00:15:40] Speaker 02:
He doesn't agree or object to the mistrial.

[00:15:42] Speaker 02:
He doesn't say a word.

[00:15:43] Speaker 02:
So the idea that there was some kind of strategy for this

[00:15:48] Speaker 02:
He knows when he's making a strategic decision in a dicey situation to put it on the record because he does it the next day in a different context.

[00:15:56] Speaker 02:
He tells the court this is strategy.

[00:15:57] Speaker 02:
He is saying nothing because he is protecting Eric Larson in those circumstances.

[00:16:04] Speaker 02:
And to the extent that he went to the jail and said he was.

[00:16:07] Speaker 01:
Isn't it also possible that he's saying nothing because what she said was true?

[00:16:12] Speaker 01:
That how she characterized that interview was true?

[00:16:15] Speaker 01:
We know now that that's not true, Your Honor.

[00:16:18] Speaker 01:
Well, that gets into whether we can expand the record, the factual record.

[00:16:22] Speaker 01:
So let's set that aside for a minute.

[00:16:23] Speaker 01:
But based on just what the state court would have had to resolve this issue, isn't it possible that the defense attorney doesn't say anything?

[00:16:30] Speaker 01:
Because he knows there's no way to cross her because she just said something that was true.

[00:16:36] Speaker 02:
The result of that, Your Honor, is that then Larson's need to withdraw from the case began much earlier, because

[00:16:45] Speaker 02:
he had to anticipate what if she goes in.

[00:16:48] Speaker 01:
But then we're back to prejudice.

[00:16:49] Speaker 01:
We're back to prejudice because even if you're right, and you might be in terms of how you should represent clients and your obligations, ethical obligations and such, but if it's true that what she testified to was correct and he withdraws instead of remains silent and lets the trial proceed or another attorney steps in, you're still going to be dealing with the circumstances of

[00:17:14] Speaker 01:
What she said was true and there was no basis to cross-examine.

[00:17:17] Speaker 01:
I'm still struggling with how we get to prejudice on the record as it existed in front of the state court.

[00:17:25] Speaker 02:
Because without that confirmation, that apparent confirmation,

[00:17:33] Speaker 02:
Christina George is not believable.

[00:17:35] Speaker 02:
So if we say Christina George has been, you know, the cross-examination was withering, Christina George is destroyed, but the jury did believe her because she was the center of the case.

[00:17:48] Speaker 02:
She was all the evidence on the homicide.

[00:17:50] Speaker 02:
And so at least Mr. Reinhart's involvement in the homicide.

[00:17:54] Speaker 02:
And so if the cross-examination was withering, then there's nothing left of Christina George.

[00:18:00] Speaker 02:
She's destroyed until the state is able to point at Larson and say, here's your best evidence.

[00:18:07] Speaker 02:
And so even if she was telling the truth, his conflict has harmed his client, and the prejudice is still apparent.

[00:18:17] Speaker 03:
see where we are at this point.

[00:18:20] Speaker 03:
You have, from my perspective, stretched Sullivan and the conflict beyond what our case law is.

[00:18:27] Speaker 03:
So, arguing though, if we don't accept your characterization of where our law is, aren't we left with a prejudice analysis at this point?

[00:18:39] Speaker 02:
If Sullivan doesn't apply and there is a prejudice analysis,

[00:18:46] Speaker 02:
Your honor, then yes.

[00:18:48] Speaker 02:
But what the prejudice then is, is that counsel didn't agree to the mistrial.

[00:18:55] Speaker 02:
Counsel didn't use his notes to cross-examine George, didn't question her at all.

[00:19:03] Speaker 02:
And he makes no argument on Mr. Reinhart's... That's what we're analyzing for prejudice though, right?

[00:19:10] Speaker 02:
Yes.

[00:19:11] Speaker 03:
We're looking for prejudice in what you're now going to.

[00:19:14] Speaker 02:
Well, the prejudice, Your Honor, is he stops essentially representing Mr. Reinhart.

[00:19:19] Speaker 02:
No questions, no argument, and he avoids the very impeachment that is right before him.

[00:19:28] Speaker 03:
And I say you argue that's prejudicial, right?

[00:19:31] Speaker 03:
Yes, that's exactly right, Your Honor.

[00:19:33] Speaker 01:
Can I go back for a minute?

[00:19:34] Speaker 01:
At the start of this, you indicated that this whole line about this particular witness you're raising under the Confrontation Clause and under the Due Process Clause,

[00:19:43] Speaker 01:
On the confrontation issue, well, I guess on both of them, those are uncertified questions.

[00:19:48] Speaker 01:
Is that right?

[00:19:49] Speaker 02:
The court certified the claim D, Your Honor, which was in the direct appeal raised as right to counsel, confrontation, and due process.

[00:19:59] Speaker 02:
And really, the confrontation aspect

[00:20:04] Speaker 02:
does sort of get subsumed into the right to counsel.

[00:20:06] Speaker 02:
I mean, the right to counsel is the bedrock of the whole claim, where Mr. Reinhart had a right to that counsel's undivided loyalty during his trial.

[00:20:18] Speaker 01:
I understand the argument, but I see those as two different legal claims, the confrontation theory and the Sixth Amendment right to counsel theory.

[00:20:24] Speaker 01:
You would agree with those, that those are two different legal theories?

[00:20:27] Speaker 01:
Yes.

[00:20:28] Speaker 01:
OK, I understand they could be related.

[00:20:30] Speaker 01:
And your position is that the confrontation theory

[00:20:33] Speaker 01:
is in front of us as a certified issue?

[00:20:36] Speaker 02:
Yes.

[00:20:37] Speaker 02:
It was exhausted and decided on the merits in the Arizona Supreme Court.

[00:20:42] Speaker 01:
I'm not talking about exhaustion.

[00:20:44] Speaker 01:
I'm talking about whether it's been certified for appeal.

[00:20:47] Speaker 02:
Oh, yes, Your Honor.

[00:20:48] Speaker 01:
Claim D was certified.

[00:20:50] Speaker 01:
OK.

[00:20:50] Speaker 01:
So then setting that aside, my understanding of the confrontation requirement, as announced by the Supreme Court, is basically that you have to have had the opportunity for cross-examination.

[00:21:01] Speaker 01:
Here how is that not satisfied where?

[00:21:06] Speaker 01:
Council did cross examine this witness that we're talking about I understand that he didn't go as far as you think that he needed to go But he did cross-examiner.

[00:21:14] Speaker 01:
He didn't sit mute through this whole process So how is that not meeting the Supreme Court standard for an opportunity for cross-examination?

[00:21:21] Speaker 02:
He had a right to meaningful cross-examination your honor, and it's not meaningful if his

[00:21:28] Speaker 02:
cross-examination is guided by the fact that he has to avoid asking Ms.

[00:21:34] Speaker 02:
George about her first statement in which she inculpated, and they do, and said the opposite for the most part of what she was saying there in her testimony.

[00:21:44] Speaker 02:
So it really doesn't matter how much she asked her about other things.

[00:21:49] Speaker 02:
When he was forced to intentionally avoid asking her about the statement that made the most difference, that would have been the most impactful to the jury,

[00:21:58] Speaker 02:
That's not meaningful cross-examination.

[00:22:01] Speaker 04:
Isn't that just an ineffective assistance claim dressed up in confrontation clause garb?

[00:22:09] Speaker 04:
He was represented by counsel, and counsel conducted a cross-examination.

[00:22:17] Speaker 04:
So if counsel provided constitutionally effective assistance, doesn't that fully satisfy the confrontation clause right?

[00:22:26] Speaker 04:
There's an argument.

[00:22:27] Speaker 04:
Which you've made that council did not provide constitutionally effective assistance, but if he did What what is the what it was left of the confrontation clause argument?

[00:22:37] Speaker 02:
It's not necessarily enough.

[00:22:38] Speaker 02:
It's not an ineffective assistance of council claim your honor It's the idea that he has a right with a council with undivided loyalty to meaningfully cross-examined that witness and so the fact that there was some cross-examination conducted

[00:22:53] Speaker 02:
Doesn't satisfy the confrontation clause.

[00:22:55] Speaker 04:
What's what's the best authority for the I mean I guess I've Council you council had every upper the court didn't prevent council from asking any questions that he wanted to ask so the only reason that some questions weren't asked was because of you know council's decision and I

[00:23:18] Speaker 04:
If council was making bad decisions about what questions to ask, that seems like it sounds in the right to council, not the confrontation right.

[00:23:26] Speaker 04:
What's the best authority for the proposition that we should evaluate that sort of claim as a confrontation claim?

[00:23:33] Speaker 02:
So I just want to point out, Your Honor, that it's not only what he's not asking, but it's why he's not asking it.

[00:23:42] Speaker 02:
He's not asking it to avoid Christina George, opening the door to Christina George, testifying, which she then immediately opens the door.

[00:23:52] Speaker 02:
He really doesn't have a way to cross-examine her without opening the door.

[00:23:55] Speaker 02:
And so that statement ultimately comes in.

[00:23:57] Speaker 04:
That's a problem.

[00:23:58] Speaker 04:
But it's a problem with the kind of representation that the defendant is getting.

[00:24:02] Speaker 04:
It's not a problem with a denial of confrontation.

[00:24:05] Speaker 04:
I mean, is there a case that says that we should

[00:24:08] Speaker 04:
Think of the situation as a confrontation clause problem.

[00:24:22] Speaker 02:
Sorry, Your Honor.

[00:24:32] Speaker 02:
So in Pointer v. Texas, the United States Supreme Court said,

[00:24:38] Speaker 02:
Talked about the value of cross-examination exposing falsehoods bringing out the truth and so When the lawyer is not free to do that then and

[00:24:53] Speaker 02:
It's not meaningful.

[00:24:55] Speaker 02:
And so, your honor, it really wouldn't matter if you question Christina George all day long.

[00:25:01] Speaker 02:
If he is doing it under the strictures under the limitations of I'm trying not to open the door to the conversation that that I had with her.

[00:25:11] Speaker 02:
so that I become a witness, so that she can testify about that conversation, then there's just no way the court can find that that cross-examination was meaningful.

[00:25:22] Speaker 02:
And if it isn't meaningful, then it does violate the confrontation clause.

[00:25:26] Speaker 02:
Ms.

[00:25:26] Speaker 03:
Halstead, you said you'd like to save five minutes.

[00:25:28] Speaker 03:
Up to you, you're less than five minutes now.

[00:25:31] Speaker 03:
If you want to reserve the balance of your time, you may, or you may proceed.

[00:25:34] Speaker 02:
I'll reserve the balance unless the court had any other questions before I think.

[00:25:39] Speaker 03:
Why don't you reserve that then?

[00:25:42] Speaker 03:
Mr. Sparks.

[00:25:50] Speaker 00:
Good morning, Your Honors.

[00:25:50] Speaker 00:
My name is Jeff Sparks with the Arizona Attorney General's Office representing the appellee.

[00:25:56] Speaker 00:
Turning to the confrontation due process conflict claim, it's essential to remember that this claim falls under ADPA because it was addressed on direct appeal by the Arizona Supreme Court.

[00:26:08] Speaker 00:
And because of that, really the only relevant question was did the Arizona Supreme Court unreasonably apply clearly established federal law in denying relief.

[00:26:19] Speaker 00:
And I think it's clear that the answer is no.

[00:26:21] Speaker 00:
I think that this court's decision in Plumlee, the Masto that we cited in our supplemental answering brief, are addressing this claim is helpful because it looks at the, that was an epic case like this one.

[00:26:35] Speaker 00:
It looks at the relevant Supreme Court holdings, the cases that we've been talking about this morning, Sullivan, Mickens, and it concludes based on those that the, for EDPA purposes, the clearly established federal law in this area establishes that a conflict exists when the attorney is actively representing conflicting interests, and we simply don't have that here.

[00:27:00] Speaker 03:
So from your perspective, since we're analyzing this under EdPOM, Sullivan and Sullivan were done.

[00:27:07] Speaker 03:
Nothing else to say about the conflict issue.

[00:27:10] Speaker 03:
Is that correct?

[00:27:11] Speaker 00:
That is correct, Your Honor.

[00:27:12] Speaker 00:
I think that the Supreme Court case law is clear.

[00:27:14] Speaker 00:
It's a very high standard of what's required to establish a conflict in this context.

[00:27:19] Speaker 04:
Do you agree that it was deficient performance on the part of counsel?

[00:27:25] Speaker 04:
To go ahead with the trial where he was an important witness as to the credibility of a key prosecution witness.

[00:27:34] Speaker 00:
Under the facts that we have in the state court record, I don't necessarily think that it was.

[00:27:37] Speaker 00:
I won't defend the decision to interview without someone else there and without a recording.

[00:27:43] Speaker 00:
That might get closer to division performance.

[00:27:46] Speaker 00:
However, once we get to trial, the facts that came out

[00:27:50] Speaker 00:
In the state court record that are relevant for our purposes here, again, because of that, the ineffective assistance would also fall under EDPA because it was addressed by the state courts.

[00:27:59] Speaker 00:
Christina George testified that she inculpated Reinhart when she spoke with Eric Larson before trial.

[00:28:07] Speaker 00:
So the facts we have in the record are that her statement to Larson was consistent with her ultimate trial testimony.

[00:28:16] Speaker 00:
You essentially have a prior consistent statement with her trial testimony.

[00:28:20] Speaker 00:
She gave inconsistent statements in between to the police that inculpated Nadeau instead.

[00:28:26] Speaker 00:
And I think when you look at that, it was a reasonable strategic decision for Larson to try to attempt to get into those statements to the police, inculpating Nadeau as much as he could.

[00:28:39] Speaker 00:
wanting to open the door to the prior consistent statement that she had testified to to the court prior to her testimony in front of the jury.

[00:28:48] Speaker 00:
So looking at everything in context with the facts that we have in the state court record, I think there's a good argument that it was a reasonable strategic decision for him to address it the way that he did.

[00:29:00] Speaker 00:
And in addition, if he withdraws, again, based on the facts we have in the state court record, he's potentially an adverse witness,

[00:29:08] Speaker 00:
Based on what Christina George testified to the trial judge that she told Larson, he could only confirm that what she told him was consistent with her trial testimony.

[00:29:17] Speaker 00:
And the last thing I would presume that Larson wanted to do was become a witness that would hurt his client.

[00:29:26] Speaker 03:
That would be devastating to them, would it not?

[00:29:28] Speaker 03:
Because he would be putting the finger on his very client, right?

[00:29:32] Speaker 00:
Absolutely, absolutely.

[00:29:34] Speaker 00:
And looking at the prejudice side of the equation, whether under Strickland or the conflict analysis, again, looking at the facts in the state court record, if he withdraws, nothing changes.

[00:29:46] Speaker 00:
I don't think.

[00:29:46] Speaker 00:
I mean, I think that's a reasonable conclusion to draw looking at the facts.

[00:29:50] Speaker 00:
If he withdraws and another attorney represents Reinhart, the facts that came out at trial are the same facts that would come out if that happened.

[00:29:58] Speaker 00:
So there's really no change there.

[00:30:02] Speaker 00:
One additional point I wanted to make.

[00:30:06] Speaker 00:
Brecht also applies here too, because it's an EDPA claim.

[00:30:09] Speaker 00:
So I think aside from the issue under the cases like Sullivan and Mickens, whether we can even get into a prejudice analysis, Reinhart is still required to demonstrate prejudice to obtain relief, because we're in the habeas context under Brecht.

[00:30:25] Speaker 00:
v. Abramson, so that would apply as well.

[00:30:27] Speaker 00:
And I think for the reasons that were well articulated by the district court, there's no prejudice.

[00:30:33] Speaker 01:
Do you agree that the confrontation question is within the scope of the issues that have been certified for appeal?

[00:30:40] Speaker 00:
It was part of the claim that was, sorry, long answer.

[00:30:45] Speaker 00:
I'll try to get to it quickly.

[00:30:46] Speaker 00:
It was part of the claim that was raised in the Arizona Supreme Court.

[00:30:49] Speaker 00:
It was raised as an uncertified issue.

[00:30:54] Speaker 00:
I'm not sure that it's certified.

[00:30:55] Speaker 00:
The court ordered briefing on the uncertified issues, so we briefed them.

[00:30:59] Speaker 01:
Right.

[00:30:59] Speaker 01:
I understand that.

[00:31:00] Speaker 01:
I'm just trying to figure out, do we need to make a certifi- whatever.

[00:31:04] Speaker 01:
You know what I'm saying.

[00:31:05] Speaker 01:
Do we need to make a decision about whether it's properly in front of us before we get to it or not?

[00:31:12] Speaker 00:
You certainly could.

[00:31:13] Speaker 00:
I think either way, it's clear that the claim fails under the merits.

[00:31:17] Speaker 00:
I'm not sure that that distinction is important to the outcome.

[00:31:20] Speaker 01:
Fair enough.

[00:31:20] Speaker 00:
Sure.

[00:31:23] Speaker 00:
With that, I'm happy to answer any questions the court may have on the other issues.

[00:31:27] Speaker 04:
Can you address counsel's failure to present any mitigating evidence here?

[00:31:34] Speaker 04:
In a lot of the cases where we see this, it's a little bit easier to understand.

[00:31:41] Speaker 04:
In Landrigan, for example, the client said basically that he wanted to be executed.

[00:31:45] Speaker 04:
Bring it on, he said.

[00:31:48] Speaker 04:
And we have some cases where

[00:31:51] Speaker 04:
The client says, I don't want to embarrass my family, or I have some reason for not wanting to call them.

[00:31:56] Speaker 04:
But here on this record, it's very hard to understand what the defendant and his lawyer were doing in not presenting any mitigation case.

[00:32:09] Speaker 04:
What do we make of that?

[00:32:11] Speaker 00:
Well, I think the important thing that is clear from the record here is that Reinhart was adamant that he did not want mitigation to be presented.

[00:32:18] Speaker 00:
The trial judge addressed that with him, questioned him about it fairly extensively.

[00:32:23] Speaker 00:
I think to make sure the trial judge wanted to make sure that this was

[00:32:27] Speaker 00:
a clear, unequivocal decision on Reinhart's part that he did not desire to present any mitigation.

[00:32:34] Speaker 00:
And again, because this claim is before the court under Section 2254D, I think cases like Landergan control here that talk about the fact if a defendant clearly states, I don't want mitigation presented, then it can't be prejudicial for counsel not to present it over their objection.

[00:32:54] Speaker 04:
I understand the EDPA point, which is obviously an important one, but setting that aside for a moment, do you think council has an obligation either from professional standards or from the Sixth Amendment to try to explain to the client

[00:33:15] Speaker 04:
the gravity of the decision and to try to encourage him to put on a mitigating case?

[00:33:22] Speaker 00:
Sure, I would agree with that.

[00:33:23] Speaker 00:
I think, yes, but kind of in private discussions with the client, I would imagine that's a very important part of counsel's role.

[00:33:30] Speaker 00:
I also want to point here, there's nothing to suggest that that didn't happen in the record that's before the court.

[00:33:36] Speaker 03:
As a matter of fact, if I understand it correctly, he said he had talked to him about it, and then the court went through and basically

[00:33:45] Speaker 03:
played the role of the lawyer ask all the questions ask about the.

[00:33:49] Speaker 03:
Basically everything that the lawyer could have asked what role if any should that play in our analysis where the court itself took the place of what counsel would normally have done.

[00:34:05] Speaker 00:
I think that the court's questioning there is important because it confirms that this was a voluntary decision by the defendant.

[00:34:14] Speaker 00:
It's a knowing decision by the defendant.

[00:34:15] Speaker 00:
He's aware he has the right to present mitigation.

[00:34:18] Speaker 00:
He's aware of how that might affect the sentencing decision that the trial court's about to make.

[00:34:25] Speaker 00:
It's helpful to have that in the record from the trial court.

[00:34:28] Speaker 03:
The court actually said, this is really, really important to you, and explained why.

[00:34:35] Speaker 03:
It's kind of unusual, the extent to which the court went in this case.

[00:34:40] Speaker 03:
But I wanted your sense of what role that plays in our analysis, particularly since we look at this through the lens of EDPA.

[00:34:49] Speaker 00:
Right, I think under the record here, even if the court hadn't done that, I think we still wouldn't have prejudice because the statements of Mr. Larson were clear that they had talked.

[00:35:05] Speaker 00:
And for personal reasons, Mr. Reinhart had decided that he did not wish to present

[00:35:11] Speaker 00:
Any mitigation however, I think it just more even more firmly supports that conclusion the fact that the trial court went through this extensive questioning with mr.. Reinhart on that point and Unless there any further questions other questions by my colleagues.

[00:35:30] Speaker 00:
I think not.

[00:35:31] Speaker 03:
Thank you.

[00:35:31] Speaker 03:
Thank you very much All right, miss Hall you have some rebuttal time.

[00:35:36] Speaker ?:
I

[00:35:48] Speaker 02:
Your honors, the state's position essentially comes down to, well, this trial lawyer did the best he could with the mess he created.

[00:35:58] Speaker 02:
That is not what Strickland requires.

[00:36:02] Speaker 02:
I think the question about prejudices comes, I think, for the court comes down to this, the way the court is looking at the claim.

[00:36:13] Speaker 02:
is that if there had been a mistrial, Larson would have testified against his client's interests, and that would have been worse.

[00:36:20] Speaker 02:
But that begs the whole question.

[00:36:22] Speaker 02:
It's defense counsel who put himself in that position in the first place.

[00:36:27] Speaker 02:
He never should have gone and conducted that interview.

[00:36:31] Speaker 02:
He never should have gone forward with that without another witness or a recording because of this very problem.

[00:36:38] Speaker 03:
How do you solve the problem?

[00:36:40] Speaker 03:
If we take your position,

[00:36:43] Speaker 03:
and you have a mistrial, then Larson ends up testifying against his client, which is devastating.

[00:36:49] Speaker 03:
How does that help?

[00:36:51] Speaker 03:
How does that get a better result from your perspective?

[00:36:54] Speaker 02:
That almost makes the prejudice worse, because the mistake that Larson made was to go do that interview.

[00:37:02] Speaker 02:
I understand it.

[00:37:02] Speaker 03:
But having done it, it seems like you're saying, since he did that, there's no way out of it so your client walks free.

[00:37:09] Speaker 03:
Is that what you're saying?

[00:37:11] Speaker 02:
no not walks free your honor but gets the fair trial that he was entitled to.

[00:37:15] Speaker 03:
How can he get a fair trial when Larson testifies against him what he heard Ms.

[00:37:20] Speaker 03:
George say?

[00:37:21] Speaker 02:
And that's the conflict your honor once he goes and does that interview.

[00:37:25] Speaker 03:
And it's irreconcilable there's no way to get out of it from your perspective is that right?

[00:37:30] Speaker 02:
That's right your honor because the right to counsel at that point Larson can't fulfill that role he can't be the lawyer and he so what

[00:37:39] Speaker 02:
What that affects, what that point affects is that Larson may have testified is just that Larson should have left the case much sooner and shouldn't have ever done the interview in the first place and agreed at the mistrial.

[00:37:54] Speaker 04:
But it wasn't ineffective to have a key witness interviewed, right?

[00:38:00] Speaker 04:
You're just saying he shouldn't have done it himself.

[00:38:02] Speaker 04:
He should have recorded it or had somebody else there.

[00:38:04] Speaker 04:
Is that right?

[00:38:05] Speaker 02:
That's right, Your Honor.

[00:38:06] Speaker 04:
But if he had done that,

[00:38:08] Speaker 04:
Assuming she said the same things that she said when she talked to him, now he would have a tape recording or the testimony of some other person that she had implicated his client.

[00:38:20] Speaker 04:
So it doesn't seem like that would really leave his client any.

[00:38:25] Speaker 04:
I mean, it would be a better ethical practice.

[00:38:28] Speaker 04:
But in terms of the effect on the defense, it doesn't seem like it would have helped.

[00:38:34] Speaker 04:
How would that have helped?

[00:38:35] Speaker 02:
Except the only reason there's this sort of assumption that she did inculpate him is because Christina George says that she did.

[00:38:45] Speaker 02:
And if Christina George is the least credible witness,

[00:38:51] Speaker 02:
She's gone back and forth three or four times on this point, then that can't be what salvages counsel in that case, in that instance.

[00:39:04] Speaker 02:
So he has to avoid making himself a witness.

[00:39:09] Speaker 02:
And so to say that, I just don't think the court knows what the outcome would have been.

[00:39:15] Speaker 02:
had Larson not put himself in that position.

[00:39:18] Speaker 02:
And to say that, well, he did the best he could with the problem he created doesn't satisfy Strickland.

[00:39:26] Speaker 02:
It doesn't satisfy Sullivan in the conflict cases as well, but doesn't satisfy that.

[00:39:31] Speaker 02:
Because to say, I'm just going to forge ahead with the mess I've created isn't

[00:39:40] Speaker 02:
This just doesn't meet the Sixth Amendment's requirements.

[00:39:43] Speaker 03:
Your position seems to be that having done what he did, the case is over.

[00:39:47] Speaker 03:
It's irremediable because you can't have him testifying against Mr. Reinhart.

[00:39:55] Speaker 03:
You can't have him beat the lawyer.

[00:39:57] Speaker 03:
So where does that end up?

[00:40:00] Speaker 03:
That doesn't make any sense, does it?

[00:40:03] Speaker 02:
It makes sense in terms of the Sixth Amendment's demand that Mr. Reinhart have counsel with an undivided loyalty.

[00:40:11] Speaker 02:
That's what it has to provide.

[00:40:13] Speaker 03:
That sounds really nice, but practically what does it mean?

[00:40:17] Speaker 02:
Practically what it means, Your Honor, is that he would have had a new lawyer with a new trial.

[00:40:21] Speaker 02:
That lawyer would have received Larson's notes.

[00:40:24] Speaker 02:
Because it's interesting, the prosecutor, I think the state courts have assumed, and the district court assumed, that they knew what was in Larson's notes.

[00:40:32] Speaker 02:
We now know what's in Larson's notes.

[00:40:33] Speaker 02:
But taking that aside, the new lawyer would have had Larson's notes.

[00:40:40] Speaker 02:
The new lawyer would have investigated Christina George.

[00:40:44] Speaker 02:
The new lawyer would not have had their hands tied.

[00:40:46] Speaker 02:
And so we don't know what the particular result of the new trial would have been, but we know it would have been a fair trial.

[00:40:56] Speaker 02:
And that's all that Mr. Reinhart has asked for.

[00:40:58] Speaker 03:
So we'll let you go over time.

[00:40:59] Speaker 03:
Let me ask my colleague, does either have additional questions?

[00:41:03] Speaker 03:
I think not.

[00:41:03] Speaker 03:
We thank both counsel for your argument in this case.

[00:41:06] Speaker 03:
The case just argued is submitted, and the court stands adjourned.