[00:00:00] Speaker 00: Good afternoon, ladies and gentlemen. [00:00:03] Speaker 00: Judges Bumate and Beatty and I welcome you to the Ninth Circuit. [00:00:08] Speaker 00: We have one matter on this afternoon. [00:00:10] Speaker 00: Michael Stephen Combs versus Ron Broomfield. [00:00:14] Speaker 00: Case number 19-99010. [00:00:16] Speaker 00: It is a capital case, meaning that each side has 30 minutes total. [00:00:24] Speaker 00: If you are the petitioner, appellant, and you wish to reserve some time, it's up to you to keep track of your time, but I'm looking right at the clock. [00:00:35] Speaker 00: So if you tell me aspirationally how much time you would like to save, I'll try to remind you. [00:00:42] Speaker 00: Seven minutes, Your Honor. [00:00:43] Speaker 00: All right, thank you. [00:00:45] Speaker 00: You may proceed. [00:00:46] Speaker 03: May it please the court, Pamela Gomez on behalf of Michael Combs, appellant, whose capital jury did not know that his mother had been repeatedly raped by her own father, and because of that rape, thought that Michael was the product of the last time her father had raped her, which caused her to try to self-abort, thus damaging Michael while still in utero. [00:01:10] Speaker 03: I would like to start by dispelling the notion that trial counsel actually obtained the records concerning Michael Combs' adoptions at the time in foster care. [00:01:20] Speaker 03: The attorney general cites the trial exhibit 65 at volume 4, page 800 of a police supplemental excerpts of records. [00:01:30] Speaker 03: Those are not Michael Combs' adoption records. [00:01:34] Speaker 03: let alone a complete set of his foster care records. [00:01:37] Speaker 03: What they are, it's actually an unofficial record of the adoption decree, most likely obtained from Combs' adoptive parents themselves, since the document contains letters addressed to the Combs. [00:01:50] Speaker 03: It is not a complete record of Michael's foster care records. [00:01:57] Speaker 03: In fact, it's only four pages of that document referred to foster care, but it actually is a duplicate. [00:02:04] Speaker 03: So it's only two pages of that document. [00:02:06] Speaker 00: So I'm not quite understanding what the relevance of that would be. [00:02:10] Speaker 03: Well, the attorney general's argument seems to be that [00:02:14] Speaker 03: That document shows that trial counsel actually had conducted a complete investigation, which is not the case, Your Honor. [00:02:21] Speaker 03: Counsel waited until one week before what year commenced to seek a subpoena dukestecum to get the birth records of Michael. [00:02:30] Speaker 03: Knowing from the- Why is that relevant? [00:02:31] Speaker 01: Didn't they know who his mother was? [00:02:34] Speaker 03: They didn't do the proper diligent research to actually find her, let alone. [00:02:39] Speaker 01: Yeah, that's a separate question. [00:02:40] Speaker 01: But the fact of these records, whether or not the adoption records are complete, they knew whose mother was. [00:02:44] Speaker 01: And so how is that relevant? [00:02:46] Speaker 03: Because, Your Honor, that's actually a red flag for them to actually conduct a proper investigation from the beginning that they actually took the case. [00:02:54] Speaker 03: Before they were actually appointed to the case, Michael had been examined by another expert. [00:02:59] Speaker 03: And in trial consult files, there was a record where that expert said, [00:03:03] Speaker 03: And I quote, I think he used actually the word tantalizing. [00:03:06] Speaker 03: It would be tantalizing to try to find out Michael's biological family, given what he has seen. [00:03:13] Speaker 03: And that in his experience, it compels us to find out and to look for the biological parents. [00:03:19] Speaker 00: Well, I think you argue that defense counsel did not begin looking for Combs' mother until November 1992 when they filed the ex-party application for two subpoena for Combs' birth records. [00:03:33] Speaker 00: How do we know defense counsel had not started its investigation sooner? [00:03:38] Speaker 03: I'm not saying that they didn't start to look for her. [00:03:41] Speaker 03: What I'm saying is that they did not conduct a complete investigation that would have led to not just finding the mother, but also finding other relatives who could have given the same type of red flags that the mother herself had indicated. [00:03:56] Speaker 00: Well, so wasn't the, okay, I'm just trying to figure out what your best case to support your argument that defense counsel rendered deficient performance by [00:04:06] Speaker 00: starting its search for Combe's mother too late. [00:04:10] Speaker 00: So the evidence, it seems to me that what the best would be that she would be able to have said that she drank while she was pregnant. [00:04:25] Speaker 03: Correct, Your Honor, among other things. [00:04:27] Speaker 03: and that she could try to ingest drugs to induce the abortion. [00:04:32] Speaker 03: And that led to damage while Michael was in Europe. [00:04:37] Speaker 00: Well, there was evidence in the trial that he had organic brain damage. [00:04:48] Speaker 00: In going over all of the voluminous record that I think that more than one of the doctors pointed that he had some lesions in his brain to show that he had, and it was opined that one of them could have been, one of the reasons could have been fetal alcohol syndrome. [00:05:08] Speaker 03: They didn't actually say fetal alcohol syndrome. [00:05:11] Speaker 03: What they said is that the damage could have been done while at birth. [00:05:14] Speaker 03: But as we know, Your Honor, it's a different thing to actually speculate. [00:05:18] Speaker 03: It's actually to present that evidence for the jury to determine that. [00:05:24] Speaker 05: Wasn't his mother's, weren't her statements inconsistent about her alcohol consumption? [00:05:29] Speaker 05: So she said a couple of different things. [00:05:33] Speaker 05: suggests very different amounts of alcohol being consumed while pregnant. [00:05:36] Speaker 03: Right, either a six pack or a 12 pack in a week or two weeks. [00:05:41] Speaker 03: But the problem with fetal alcohol syndrome, Your Honor, is not necessarily the amount, but it's actually the time at which it was ingested. [00:05:48] Speaker 03: And Michael himself actually phenotypically shows the marks of fetal alcohol syndrome in his face, as our doctor in post-convection noted. [00:05:56] Speaker 05: So I'm thinking about the prejudice prong of Strickland. [00:05:59] Speaker 05: So the investigators identified Mr. Cumm's birth mother and tracked her to where they believe she lived in Wisconsin and then lost track of her. [00:06:10] Speaker 05: There was some vague [00:06:13] Speaker 05: evidence that she went to Texas. [00:06:15] Speaker 05: A neighbor said they thought she moved to Texas and they didn't find her after that. [00:06:18] Speaker 05: And even when she was located years later, she said she wasn't sure she even had a driver's license there or a job or any way that they could have found her. [00:06:28] Speaker 05: So I guess that goes to the sufficiency of the investigation. [00:06:31] Speaker 05: One, did they do enough? [00:06:33] Speaker 05: And two, given the inconsistencies in her statements and just the voluminous, the vast amount of psychiatric and medical evidence that was presented, would it have made a difference? [00:06:44] Speaker 03: So, Your Honor, as to the prejudice prong, just as in Rumpella, the Supreme Court said that his problem started during childhood and most likely caused by his fatal alcohol syndrome. [00:07:00] Speaker 03: That was the case here, unbeknownst to his capital jury. [00:07:04] Speaker 03: And it's not that trial counsel completely failed to follow the leads that he had. [00:07:08] Speaker 03: It's just that they didn't do a complete investigation in a timely fashion. [00:07:12] Speaker 00: Well, I guess you still ... I want to tell you, because I think at some point I need to have an answer on this, that the facts in this case are very disturbing, which is not atypical of capital cases. [00:07:33] Speaker 00: I mean, obviously capital cases are the higher level of murder cases and factually. [00:07:42] Speaker 00: But they're particularly egregious and cold, and I just wonder what, let's assume he had fetal alcohol syndrome, how that could have changed the result of the facts in this case. [00:07:57] Speaker 00: And the ones that I'm just going to tell you that the jury heard, that [00:08:02] Speaker 00: I think are very troubling, and sometimes you see murders where people kill a lot of people, or I've done a lot of capital cases, been around a long time. [00:08:11] Speaker 00: But they murder this woman, they decide they need a car and they need money. [00:08:20] Speaker 00: And then they had someone else in mind, that person counseled. [00:08:24] Speaker 00: So then they picked someone that she works at the martial arts place that your client works at. [00:08:30] Speaker 00: So he knows her. [00:08:32] Speaker 00: So then she doesn't even have a very good car. [00:08:35] Speaker 00: It's not like she's not wearing a maze and Gucci and all of that. [00:08:41] Speaker 00: There's no indication she's got a lot of money. [00:08:43] Speaker 00: But anyway, they want money and they want a car because your client is facing some forgery charges and he's decided he needs to get out of town. [00:08:53] Speaker 00: So then when you look to the facts of the actual murder, I don't know that there's any good way to be murdered if you're the victim of the murder. [00:09:04] Speaker 00: But it doesn't happen quickly. [00:09:05] Speaker 00: It's a strangulation. [00:09:07] Speaker 00: Then they have to tie, she's fighting and they have to tie her, they have to tie her wrists so it goes on for a while. [00:09:14] Speaker 00: Then there's hitting her with a flashlight and then there's rocks in a jacket. [00:09:20] Speaker 00: and then finally they check when she expels a bowel movement, they decide she's finally dead. [00:09:27] Speaker 00: Then they just dump her body unceremoniously, and then the jurors heard other testimony, your client confessed, and then there's that reenactment, which is a really kind of unusual component in a case, and he very calmly reenacts the whole thing, showing how [00:09:47] Speaker 00: that he committed this in the actual car nine days after this is all happened. [00:09:53] Speaker 00: he confesses, he confesses to it. [00:09:56] Speaker 00: And then there's testimony that the jury hears how he got a three-day high of actually doing the killing, and she has no money. [00:10:06] Speaker 00: She doesn't, she has a junkie car, and she has no money, and when he asks about, you know, are you sorry about it, well I'm sorry, it would have been worth it if she'd had some money, but she doesn't even have any money. [00:10:16] Speaker 00: So they're really very [00:10:19] Speaker 00: harsh facts for your client to overcome. [00:10:23] Speaker 00: And I'm just wondering how fetal alcohol syndrome [00:10:28] Speaker 00: is going to do that. [00:10:29] Speaker 03: Your Honor, that actually explained Michael's failure to show any particular remorse in his reenactment. [00:10:35] Speaker 03: That goes to the core of the matter. [00:10:37] Speaker 03: He is biologically unable to express remorse in his expression because of the fetal alcohol. [00:10:45] Speaker 00: But not everyone that has fetal alcohol does this kind of crime. [00:10:49] Speaker 03: And Your Honor, if I may, although I'm not minimizing what happened here, I would just point the court to William C. Taylor. [00:10:56] Speaker 03: where in Williams v. Taylor, not only did he kill the defendant with a mattock, but after doing that, he went ahead and violently attacked two elderly women, two elderly people, one of whom was left in a vegetative state and had more other aggravation, including starting a fire in jail while pending trial. [00:11:17] Speaker 03: Nonetheless, the Supreme Court found prejudice under D2. [00:11:21] Speaker 03: because it was unreasonable for the state court not to weight both the mitigation and aggravation in total and figure out whether that in the eyes of the jury reduced his moral culpability. [00:11:36] Speaker 05: That's what extremely- Is the failure to show or express remorse an aggravating factor? [00:11:44] Speaker 03: That's what the DA argued, Your Honor, at the time of trial. [00:11:47] Speaker 05: Well, they didn't really argue that. [00:11:49] Speaker 05: I mean, their argument focused on the brutality of the crime. [00:11:52] Speaker 05: It didn't seem that the showpiece of the state's case was he didn't show remorse. [00:11:57] Speaker 05: They had two confessions, one of which was recorded reenactment and a very brutal crime. [00:12:03] Speaker 05: And that seemed to be the emphasis of their case. [00:12:08] Speaker 05: And then the aggravating factors were his priors that it was done for money, but not that he didn't show remorse. [00:12:18] Speaker 05: You're just saying as a general matter, you think the jurors may have been prejudiced against him because they didn't think he was showing remorse for this. [00:12:26] Speaker 03: I mean, we have evidence that they did. [00:12:32] Speaker 03: Attorney General herself emphasizes his cold reaction and his cold demeanor in post-conviction, and that was the argument that was made. [00:12:39] Speaker 05: So how do you have evidence of the jury's deliberation that doesn't violate Rule 606? [00:12:48] Speaker 03: What we have learned after the fact, and that takes us to one of the other uncertified claims that we have about one of the jurors not disclosing that she herself had been in a psychiatric facility. [00:13:02] Speaker 05: Well, that's different because that would be extraneous to the information that was presented at trial. [00:13:07] Speaker 05: Correct, Your Honor. [00:13:07] Speaker 05: But what the jurors talked about in their deliberations and this issue of whether he showed remorse, that would seem to be sort of classically barred that you cannot present that evidence. [00:13:16] Speaker 03: But to the extent that the state court relied on the attorney general's argument emphasizing his lack of remorse, that is what makes the decision unreasonable. [00:13:25] Speaker 03: Not necessarily that the jurors may have noticed, but it is what the attorney general argued in their briefs in post-conviction and what the attorney general argued below. [00:13:34] Speaker 03: that it was his lack of remorse that showed how cold-blooded of a killer he was. [00:13:39] Speaker 03: Where, in fact, it was just a syndrome pillar where his fetal alcohols, where the Supreme Court found that his fetal alcohol syndrome reduced his moral culpability. [00:13:49] Speaker 03: Here, too, the fetal alcohol syndrome reduces his moral culpability, not just in the fact that he can't show remorse, but also explains the adjudications, the juvenile adjudications that were used against him as aggravators. [00:14:02] Speaker 03: including the fact that he tried to commit suicide four times while in custody, which is a maladjusted response given his fetal alcohol syndrome to the stress he was under. [00:14:14] Speaker 01: Counsel, couldn't the fetal alcohol syndrome cut the other way, though, that it makes him more dangerous, that he's got these mental problems that are from birth that make him dangerous and unstable? [00:14:26] Speaker 01: So wouldn't it cut the other way with the jury? [00:14:28] Speaker 03: And even if it did, Your Honor, the Supreme Court has found in Williams v. Taylor also that the mitigation presented, while it still did not reduce his future dangerousness, it still would have impacted the juror's decision. [00:14:40] Speaker 01: Couldn't it have heightened the dangerousness? [00:14:43] Speaker 03: Just as in Williams v. Taylor, the Supreme Court found that the mitigation that he had presented did not reduce his future dangerousness, which is a requirement in Texas, that the mitigation itself [00:14:55] Speaker 03: still reduce his moral culpability. [00:14:57] Speaker 03: And we have the example also in Abdul v. Kavir, where the Supreme Court in 2007 said that the strength of Cole's mitigation evidence was not its potential to contest its immediate dangerousness, to which Ant expert's testimony was at least as harmful as it was helpful. [00:15:14] Speaker 03: Instead, its strength was its tendency to prove that his violent propensities were caused by factors beyond his control, namely neurological damage. [00:15:23] Speaker 03: Which is exactly what we have here, Your Honor. [00:15:26] Speaker 01: And then my other question is, what exactly should have counsel done when the investigators went to Wisconsin, couldn't find the mother, and I think they just had some vague information that she moved to Texas. [00:15:38] Speaker 01: What exactly should have happened at that point? [00:15:42] Speaker 03: That is not the sole argument that we're having. [00:15:44] Speaker 03: What we're saying is that counsel should have looked for the biological relatives and his foster care records from the moment they took the case. [00:15:51] Speaker 00: Well, but to prevail on your strickling claim regarding the search for the mother, you do have to show that competent counsel would have tracked her down before the penalty period. [00:16:02] Speaker 00: Correct. [00:16:02] Speaker 03: And I'm about to explain why. [00:16:04] Speaker 03: As early as November 1991, [00:16:07] Speaker 03: Two years before they saw the Sepinadus esticum, they knew that combs was adopted. [00:16:13] Speaker 03: Not only that, but they knew that an expert had urged them to look for their biological relatives because it would be tantalizing to know. [00:16:21] Speaker 03: who they had, and because he bet that they had criminal tendencies as well. [00:16:27] Speaker 03: And that's at ER 1817. [00:16:29] Speaker 01: So you still haven't connected it to me. [00:16:31] Speaker 01: You're saying if they started earlier, they maybe would have found her? [00:16:34] Speaker 03: Yes, Your Honor. [00:16:35] Speaker 01: That's it? [00:16:36] Speaker 03: I mean, they would have exhaust the avenues to actually look for her. [00:16:40] Speaker 01: But they did exhaust. [00:16:42] Speaker 01: They did not. [00:16:42] Speaker 01: OK, so then that's why you have to explain. [00:16:44] Speaker 01: When they went to a place that thought she lived, she wasn't there, and they heard that she moved to Texas, what should have they done then? [00:16:52] Speaker 03: What is important to remember is that they did that. [00:16:56] Speaker 03: So the attorney general points to what she calls an undated memo, right? [00:16:59] Speaker 03: But the undated memo actually refers when they actually try to seek the subpoena du sistigum, which was one week before what year begins. [00:17:08] Speaker 01: Just as in Williams, that... I guess my fault, my problem is I thought that your argument was that they're ineffective because they failed to find the mother. [00:17:18] Speaker 03: They failed to promptively conduct. [00:17:20] Speaker 01: So it's the timing. [00:17:21] Speaker 03: It's both the timing and the quality of the investigation. [00:17:24] Speaker 01: Okay, but then, so let's just focus on the quality then. [00:17:26] Speaker 01: What more should have been done? [00:17:27] Speaker 03: Exactly what we have done. [00:17:28] Speaker 03: Just follow that lead, Your Honor. [00:17:30] Speaker 00: But that was 2005 and 2006. [00:17:32] Speaker 00: So how did the habeas investigator track her down? [00:17:37] Speaker 00: There were other search mechanisms available at that time, right? [00:17:41] Speaker 03: By precisely looking at the lead that prior counsel had obtained and following up from there. [00:17:47] Speaker 03: And that's what we would prove at an evidentiary hearing, which was never granted in this case. [00:17:51] Speaker 03: Although trial counsel has passed away, we have trial counsel's records. [00:17:55] Speaker 03: And we will be able to establish the chain of custody and the integrity of those counsel's files to actually show at a proper evidentiary hearing what counsel had before them, the timing of that evidence, [00:18:06] Speaker 03: and what they failed to do. [00:18:08] Speaker 01: Is there any evidence in the record why he stopped the investigation at that point, trial counsel? [00:18:15] Speaker 03: The investigator doesn't know, Your Honor. [00:18:17] Speaker 01: But you have the records. [00:18:18] Speaker 01: Right. [00:18:19] Speaker 03: What the investigator says is that we don't know why we stopped the investigation. [00:18:23] Speaker 03: It might have been because we ran out of time of the attorneys told us to stop. [00:18:29] Speaker 03: And that's the declaration that we have. [00:18:31] Speaker 01: Okay, there's nothing more. [00:18:33] Speaker 03: Correct. [00:18:34] Speaker 03: And, Your Honor, we were appointed in 2006. [00:18:39] Speaker 03: Less than seven months later, we obtained Combs Foster Care records. [00:18:43] Speaker 03: And that was without a subpoena power or anything of that matter. [00:18:47] Speaker 03: And the importance of those records is of the plethora of other red flags that they indicate. [00:18:53] Speaker 03: And that is at volume 8, ER 2145-55, among others. [00:19:00] Speaker 03: The foster care worker notes that the mother seemed to be of low average intelligence and had difficulty expressing herself comprehensively. [00:19:09] Speaker 03: She was lacking in emotion effect and at times her emotional responses seemed inappropriately directed. [00:19:17] Speaker 03: She kept the baby for six weeks and then decided she did not have the proper emotional feeling for it. [00:19:24] Speaker 03: The birth mother was the fourth child in a family of six children, meaning there were other people trial counsel could have found had they looked. [00:19:31] Speaker 03: That could have also testified how the mother had been repeatedly raped, including the mother's younger sibling, who remembers precisely the same incident where she came back from the dunes with her dress torn on and her nieces scraped after the father had raped her. [00:19:51] Speaker 03: She expressed negative feelings toward her father at 16. [00:19:54] Speaker 03: Her mother was out and her father tried to get into her bed. [00:19:58] Speaker 05: The child appeared— All of this, while tragic and incredibly disturbing, doesn't seem to be [00:20:06] Speaker 05: something that would have affected Mr. Combs because he was entirely unaware of it. [00:20:11] Speaker 05: The crimes against the mother are another matter. [00:20:16] Speaker 05: What you're leading all that up to is her attempts to induce an abortion and then her consumption of alcohol, which is a psychological issue. [00:20:28] Speaker 05: Dr. Cronella, Dr. Graves, Dr. Poore, Dr. Oshren, and then the four additional doctors at habeas. [00:20:41] Speaker 05: So, like, a very, very significant investigation with imaging, review of medical records, evaluations by all these doctors. [00:20:49] Speaker 05: I mean, a very comprehensive review of Mr. Come's mental and physical state. [00:20:53] Speaker 03: But Your Honor, just as in Rumpila, it's not the amount of investigation, it's the quality investigation, right? [00:21:02] Speaker 03: In Rumpila... Well, many of these are experts that the defense put forward. [00:21:06] Speaker 03: Correct. [00:21:06] Speaker 03: In Rumpila, counsel introduced the testimony of three experts. [00:21:10] Speaker 03: We have eight here that I've just rattled off, and there may have been more. [00:21:13] Speaker 03: Right, but because they had not the complete information about Rompilla, they weren't able to actually opine about him. [00:21:20] Speaker 05: But didn't some of them say there may have been fetal alcohol syndrome, or there's another term for it that, I can't remember what it is, there's an additional letter in there, fetal alcohol [00:21:35] Speaker 05: spectrum disorder, I think. [00:21:36] Speaker 03: That's actually in post-conviction, Your Honor. [00:21:39] Speaker 03: At the time of trial, the experts only speculated that the organic brain damage may have been in utero, but there was no evidence to the case. [00:21:48] Speaker 05: I mean, I know you disagree with this, but it seems that they had enough that they testified and were suggesting that there were these problems. [00:21:57] Speaker 05: It seems to me you're looking for sort of the cherry on the top. [00:22:01] Speaker 05: Here's another diagnosis that they could speculate about because they didn't, they wouldn't have any information that that had actually occurred. [00:22:09] Speaker 03: No, Your Honor, but I mean, just like as in Rampella, his fetal alcohol syndrome was not a speculation. [00:22:14] Speaker 03: And it's still, the court found it meaningful to explain what had happened at that time. [00:22:20] Speaker 03: Here, there is no difference. [00:22:22] Speaker 03: Counsel had the opportunity to do a complete investigation because of inattention. [00:22:28] Speaker 03: Just as in Wiggins, they failed to actually follow the leads in a timely fashion that they did. [00:22:34] Speaker 03: Just as in Wiggins, when counsel asked the day before the sentencing to bifurcate the proceedings, here, counsel asked a week before Wadir for a subpoena to search for the medical records of his birth. [00:22:50] Speaker 03: That's just, the similarity is actually very interesting to note, that a Supreme Court case which found the prejudice and deficient performance also found the timeliness of the investigation proper. [00:23:03] Speaker 03: Williams v. Taylor also instructed us that it is important to find out the timing of the investigation, as well as the standard of care at the time of the trial. [00:23:17] Speaker 03: Council had a duty to conduct a complete adequate constitutional investigation before trial began. [00:23:24] Speaker 03: And we've cited those cases in our briefs. [00:23:30] Speaker 00: Do you want to save the balance of your time? [00:23:32] Speaker 00: Yes, Your Honor. [00:23:33] Speaker 00: All right, thank you. [00:23:58] Speaker 04: Good afternoon. [00:24:00] Speaker 04: May it please the court, Deputy Attorney General Sharon Rhodes, appearing on behalf of Respondent Appellee. [00:24:06] Speaker 04: Combs has failed to show that the California Supreme Court's denial of his penalty-phase ineffective assistance of counsel claims involved an unreasonable application of the United States Supreme Court precedent. [00:24:18] Speaker 04: He has not met his burden of showing that no fair-minded jurist could have reached the conclusions the California Supreme Court reached in rejecting his claims. [00:24:26] Speaker 00: Since your friend on the other side spent so much time on the locating of Combs mother, maybe we can kind of start there since. [00:24:36] Speaker 00: I know they're not abandoning other arguments, but that seems to be a focal point. [00:24:41] Speaker 00: And Combs argues that defense counsel did not begin looking for Combs' mother until November of 1992 when they filed the ex-party application for the subpoena of Combs' birth records. [00:24:55] Speaker 00: Do you dispute that that is when defense counsel began the investigation, if not what evidence is in their record of otherwise? [00:25:06] Speaker 04: Yes, we do. [00:25:07] Speaker 04: The reason is the undated memo does not state when they started looking. [00:25:12] Speaker 04: But what the investigator did say in his undated memo was that when he got the results of the subpoena back, it merely confirmed what he already knew, which would indicate that he'd already been investigating before he requested the documents. [00:25:28] Speaker 04: Unfortunately, we don't have either a declaration from the investigator since he's passed away. [00:25:36] Speaker 04: And his wife's declaration does not indicate when they started their investigation. [00:25:40] Speaker 00: So we don't have that. [00:25:40] Speaker 00: So the defense investigators memo indicates that Combs' mother was issued a Wisconsin license in late 1990 and Combs' mother's declaration states that she did not move from Wisconsin to Texas until 1993. [00:25:56] Speaker 00: So if defense counsel had started their search sooner, wouldn't they have found Combs' mother in the trailer park in Wisconsin? [00:26:04] Speaker 04: We don't know that. [00:26:08] Speaker 04: The information that we have is that they did, were able to, they first searched in California and they were able to track her to Wisconsin by looking at driver's license records. [00:26:19] Speaker 04: But we don't know the exact time when she actually moved to Texas. [00:26:24] Speaker 04: We don't have that information. [00:26:26] Speaker 00: Maybe you can tell me, do you dispute that Combs' mother would have provided mitigation evidence helpful to Combs? [00:26:34] Speaker 04: She would have provided mitigating evidence, but it would not have changed the result based on the... Okay, so you don't dispute that it would be mitigating, but you're saying on the prejudice prong? [00:26:46] Speaker 04: Correct. [00:26:47] Speaker 04: But it also, some of the things that were stated in her declaration, she disputed in her deposition in 2011. [00:26:55] Speaker 04: Particularly, she pointed out that she never took drugs to try to abort her fetus. [00:27:00] Speaker 04: And she said she told the investigator at the time she was [00:27:03] Speaker 04: filling that was showing her declaration that that wasn't right, and she understood they were supposed to take that out, but they had her sign it anyway. [00:27:09] Speaker 00: So she has a declaration and a deposition. [00:27:11] Speaker 00: Yes. [00:27:12] Speaker 00: And they're factually not exactly in line. [00:27:15] Speaker 00: Should the Supreme Court have had a hearing on that? [00:27:19] Speaker 04: It wouldn't have been necessary because based on the information that's in both the declaration and in the deposition, it wouldn't have shown that there would have been any difference based on the aggravating circumstances and the wealth of the mitigating circumstances that already were presented. [00:27:36] Speaker 04: The problem was not with the investigation, but the fact that what the experts both at trial and in habeas painted a picture of him was refuted [00:27:49] Speaker 04: by his own actions that the jury was able to listen to in that recorded conversation and his own statements to the detectives and the experts, which this court has talked about already. [00:28:04] Speaker 04: And so his mental deficits that they were talking about were belied by his own actions and his own state. [00:28:11] Speaker 00: So he didn't testify either in, actually testify at the [00:28:17] Speaker 00: at the guilt or the penalty phase, right? [00:28:19] Speaker 00: That's correct. [00:28:21] Speaker 00: So what the jury would have seen was they saw the confession or whatever, and then they saw the reenactment. [00:28:31] Speaker 00: And then they saw him sit there for however long the trial took place. [00:28:37] Speaker 00: And then they heard from doctors that had [00:28:39] Speaker 00: a number of doctors. [00:28:41] Speaker 04: Right. [00:28:41] Speaker 04: And also a number of jailhouse doctors and psychologists who also talked about how he was trying to play them against each other and how he was faking having a mental problem. [00:28:53] Speaker 04: He was trying to get help his case and things of that nature. [00:28:57] Speaker 04: And he actually did tell one nurse while he was in jail that one of his suicide attempts wasn't really because he was trying to kill himself, but because he was trying to get better outcome in his case. [00:29:08] Speaker 00: Well, so, I mean, essentially, you know, obviously, whatever the defense did didn't work because he got the death penalty, but my understanding of the approach in the guilt phase was not that he wasn't guilty of the killing. [00:29:27] Speaker 00: They were going for second degree, and if they went for second degree, then [00:29:32] Speaker 00: You have to get first degree in order to get to the specials and move on to the penalty phase. [00:29:37] Speaker 00: And so that failed, right? [00:29:39] Speaker 04: Yes. [00:29:40] Speaker 00: And they did call. [00:29:41] Speaker 00: So they have the reenactment. [00:29:44] Speaker 00: They have his confession. [00:29:45] Speaker 00: And is it Cronella testified? [00:29:53] Speaker 00: at that particular juncture of that he was not capable of forming some sort of intent, right? [00:30:06] Speaker 04: Right. [00:30:06] Speaker 04: I mean, he did not say he actually didn't form the intent, but he talked about his mental deficits and things to try to convince the jury that it wasn't a premeditated murder, although he had to admit on cross-examination that he could have died. [00:30:22] Speaker 00: That kind of went badly. [00:30:24] Speaker 00: So a lot of the, I guess when I'm looking at it, basically his whole defense had to be, in the guilt phase, his whole defense was a mental state that would take him down to second degree murder. [00:30:41] Speaker 00: When he went to the penalty phase, his whole defense would be, I have had a horrible life and there were a lot of doctors that testified. [00:30:54] Speaker 00: as to try to outweigh the very bad facts in this case. [00:30:59] Speaker 00: Yes. [00:31:01] Speaker 00: And his record, I guess, as well. [00:31:03] Speaker 00: Yes. [00:31:04] Speaker 04: Yeah, because he'd also had two prior adjudications as a teenager when he robbed two women at Knife Point. [00:31:13] Speaker 04: So this murder, which was for money, also was not an aberration because he'd had conduct beforehand. [00:31:22] Speaker 00: So the experts, I think that there's some criticism by the defense that somehow, I don't know, Ashgren somehow came out because Crinella had relied on Ashgren's report. [00:31:37] Speaker 00: So I'm trying to figure out if you have nothing but you have to do the mental defense here and obviously they have to put that in Is are they asking us to thread the needle a little too it's too thin in terms of that [00:31:55] Speaker 00: All of these doctors had good things to say, arguably, for the benefit of him, but then there were other things like he had antisocial personality and other things came out. [00:32:08] Speaker 00: And I think, was it Oshkin's report that said that he was high for three days after the homicide? [00:32:14] Speaker 04: No, he actually told Dr. Cronella that. [00:32:16] Speaker 00: Oh, he told that to Cronella. [00:32:18] Speaker 00: Yes, yeah. [00:32:20] Speaker 00: That didn't come out in the guilt phase, did it? [00:32:22] Speaker 00: I don't believe so. [00:32:23] Speaker 00: It came out in the penalty phase. [00:32:26] Speaker 04: I believe so, but yeah, that was told to Dr. Cronella. [00:32:29] Speaker 04: Yeah. [00:32:31] Speaker 00: How was it kept out in the guilt phase? [00:32:35] Speaker 04: To be honest, Your Honor, I'm not quite sure when it came out, but I do know that it was with Dr. Cronella's testimony. [00:32:44] Speaker 00: I'm surprised that Cronella got to testify so narrowly in the guilt phase. [00:32:54] Speaker 04: He was, I think he was careful not to try to, he said at one point, well, I can't tell you exactly what his intent was, but I can tell you what his mental problems were. [00:33:06] Speaker 04: And so he was trying to be, in that case, not say exactly what his intent was, but saying based on his mental condition, he couldn't form these, you know, the premeditation, et cetera. [00:33:24] Speaker 04: Basically what happened with Dr. Oshawa's coming out is that in Mr. Combs' past, he had actually had treating physicians or psychologists who actually, I think one time in 1986, he voluntarily went into a psychiatric facility and during [00:33:49] Speaker 04: that treatment, there were officials at that facility who thought he had antisocial personality disorder. [00:33:55] Speaker 04: But they didn't actually reach that diagnosis because they couldn't all come to an agreement. [00:34:01] Speaker 04: So that information would have been in the treatment records. [00:34:04] Speaker 04: And of course, since he's putting his mental state at issue, the prosecution would have been entitled to all this treatment records. [00:34:10] Speaker 04: So there wouldn't be a way, if that's the court's question, to keep out antisocial personality disorder from the prosecution or the jury, because it's part of his treatment history. [00:34:19] Speaker 04: And the experts that the defense decided to use would have wanted to review all his prior examinations and evaluations in order to come to a correct diagnosis. [00:34:31] Speaker 04: And they also mentioned portions of Dr. Oshren's report in their testimony that they agreed with. [00:34:40] Speaker 04: So as the court stated, yes, there was good things and some bad things. [00:34:44] Speaker 00: The defense gave Dr. Oshawa's report to the testifying experts, right? [00:34:50] Speaker 04: Yes. [00:34:52] Speaker 04: Yes, and one of the experts. [00:34:55] Speaker 00: But you're saying it still would have come out anyway? [00:34:59] Speaker 00: Because once the defendant put his mental state at issue, the prosecution would have been entitled to see these reports anyway? [00:35:10] Speaker 04: Well, Dr. Oshren originally was hired as an expert. [00:35:16] Speaker 04: But what I'm saying is that the Antisocial Personalities Authority history of diagnosis was in treatment records. [00:35:24] Speaker 04: So that would have come out because having put his mental state in issue, that would have come out. [00:35:30] Speaker 04: The reason Dr. Oshren's report came out, the DA did not even know about it until Cronella testified and mentioned portions of the report. [00:35:39] Speaker 04: that he thought were significant and that he agreed with. [00:35:42] Speaker 04: And so at that point, during a recess between direct and cross-examination, defense counsel provided the report because, as the Supreme Court noted on direct appeal, presumably because he had to, because [00:35:56] Speaker 04: the prosecution was entitled to see. [00:35:58] Speaker 00: So what reason did defense counsel have to give Dr. Oshawa's report to the testifying experts, which opened the door essentially for the prosecution obtaining the report and calling Dr. Oshawa as a witness? [00:36:12] Speaker 04: Well, we don't know specifically, because both counsel are deceased. [00:36:20] Speaker 04: So we don't have any information from them specifically regarding what their decision was on that. [00:36:26] Speaker 04: They could have wanted the experts to be able to have a full history of Mr. Combs in making their evaluation. [00:36:34] Speaker 04: Perhaps the experts wanted to see all of them. [00:36:41] Speaker 04: Dr. Oshren's report wasn't the only report that the experts looked at that where other mental health professionals had come to the same diagnosis. [00:36:57] Speaker 01: Question. [00:36:58] Speaker 01: So you agree that the mother's testimony would have been mitigating, but what would have the fact that he was a product of incest done to the evidence? [00:37:08] Speaker 01: How would that enhance it in some way? [00:37:10] Speaker 04: Well, he actually wasn't a product of incest. [00:37:14] Speaker 04: She just thought that. [00:37:15] Speaker 01: Oh, OK. [00:37:15] Speaker 01: That's still disputed. [00:37:17] Speaker 01: OK. [00:37:18] Speaker 01: But assuming that that's true, in what way would that enhance the evidence? [00:37:26] Speaker 04: I don't see how that would enhance the evidence. [00:37:32] Speaker 04: Because there's no issue or there's no information that Mr. Combs [00:37:39] Speaker 04: somehow inherited some type of mental disorder. [00:37:41] Speaker 04: It's all based on the fetal alcohol syndrome is what the claim is. [00:37:48] Speaker 01: So the alcohol part is the stronger part? [00:37:51] Speaker 04: Yes. [00:37:52] Speaker 04: And I believe there was a record that actually that there was a DNA test done and [00:38:00] Speaker 04: Her father is not Mr. Combs' father, so there was never any incest. [00:38:07] Speaker 01: Oh, I'm sorry. [00:38:08] Speaker 01: There was DNA testing proving he was not the product of the incest? [00:38:11] Speaker 01: Yes. [00:38:11] Speaker 01: Oh, I don't think I knew that. [00:38:12] Speaker 01: Okay. [00:38:20] Speaker 00: So, arguably, the fact that even if [00:38:25] Speaker 00: She was repeatedly raped by her father. [00:38:28] Speaker 00: I think Judge Beatty made the point, well, but Mr. Combs, what would he know about that? [00:38:36] Speaker 00: How would that mitigate his situation? [00:38:41] Speaker 04: Right. [00:38:41] Speaker 04: There is no evidence that he even knew who his birth mother was. [00:38:45] Speaker 04: So he was adopted at 18 months, and as the record shows, [00:38:52] Speaker 04: His adopted mother was a very loving mother and treated him well. [00:38:56] Speaker 04: And so he had no information about his prior life before that. [00:39:00] Speaker 04: He was too young to remember any of that anyway. [00:39:11] Speaker 04: One of the things I wanted to clarify from what the appellate counsel was arguing is the argument of the prosecutor at trial was not that the way Mr. Combs was acting at trial or his flat effect showed he had no remorse, but he was arguing his statements to the detectives showed he had no remorse. [00:39:36] Speaker 04: So I just wanted to make that clear. [00:39:39] Speaker 04: So the prosecutor was arguing at trial that there was no remorse shown based on Mr. Combs own statements to detectives that he didn't have any remorse. [00:39:52] Speaker 04: He admitted that to the detective and said, [00:39:56] Speaker 04: The only thing he was sorry about was that she didn't have the money and he admitted that he and his girlfriend laughed about the murder afterwards. [00:40:02] Speaker 05: So it wasn't a flat effect or lack of emotion presented before the jurors or the detectives. [00:40:09] Speaker 05: I'm remembering that part of the testimony now. [00:40:13] Speaker 05: He said if she'd had five or ten thousand dollars he regretted it because she didn't have more money. [00:40:18] Speaker 05: That's correct. [00:40:21] Speaker 00: And he told the officer that they laughed about it, he and, is it Purcell? [00:40:27] Speaker 00: Yes. [00:40:28] Speaker 00: Yeah. [00:40:29] Speaker 00: Now she got LWOP, right? [00:40:31] Speaker 00: Correct. [00:40:32] Speaker 00: Did she, she I know was in a separate proceeding, did she actually go to trial? [00:40:38] Speaker 00: I believe she did, yes. [00:40:41] Speaker 05: Okay, so I was concerned about the discrepancies in the birth mother's statements about alcohol consumption. [00:40:50] Speaker 05: So her declaration says 12 cans per week, and then her deposition testimony, she said maybe six cans every two weeks. [00:41:01] Speaker 05: Was there any testimony from the habeas experts about if that's a significant difference? [00:41:08] Speaker 05: I don't recall that. [00:41:13] Speaker 04: Also, I want to point out, I think one thing that's important about the search for the birth mother is that when the search was happening was an unstable time in Mrs. Miller's life. [00:41:30] Speaker 04: By the time she was found by habeas council, which she states was a prior habeas council in 2000 or 2001 was what she said in the deposition. [00:41:42] Speaker 04: or when she was found by current habeas council in 2005, she'd been at the same location in Grants Pass, Oregon since 1994. [00:41:52] Speaker 04: And of course the trial concluded in 1993. [00:41:56] Speaker 04: So the fact that habeas council was able to find her years later when she was leading a more stable lifestyle does not show that council could have been able to find her at a time when she [00:42:09] Speaker 04: As she admitted in her deposition, she didn't have a job in Texas. [00:42:12] Speaker 04: She didn't have a driver's license. [00:42:15] Speaker 04: She was living in an apartment above her sister's house. [00:42:20] Speaker 04: So that's also differences between the two searches. [00:42:39] Speaker 05: There's an uncertified issue that seems fairly complicated with respect to the juror not disclosing in Vordaer that she had been in a psychiatric hospital. [00:42:52] Speaker 05: And because the California Supreme Court's denial of habeas is a summary denial, we have very little insight as to why they denied that claim and whether it was a reasonable denial. [00:43:07] Speaker 05: What is the state's response? [00:43:09] Speaker 05: I know you probably focused on the certified issues for briefing and argument, but because that argument is so complicated [00:43:19] Speaker 05: it seems that maybe it should at least be certified. [00:43:21] Speaker 05: And I think there's a component of their argument that there should have been an evidentiary hearing about the jurors' statements and her responses to the questions during board hire. [00:43:33] Speaker 04: I think it's true that we don't have a reasoned opinion regarding the reasons for the California Supreme Court's denial of that claim. [00:43:45] Speaker 04: But the record doesn't show that the juror intentionally failed to disclose that, or that the answer would have supported a challenge for cause. [00:44:05] Speaker 04: Basically, what the questions and the questionnaire were was, did you consult a psychiatrist or a psychologist, or did you have psychology or testing of that nature? [00:44:17] Speaker 04: And of course, we don't know what kind of questions the juror was asked by the investigator decades later to give her a response, which was that in 1970, she had been hospitalized. [00:44:33] Speaker 04: and found to be bipolar. [00:44:36] Speaker 04: And basically, we don't know the circumstances of that. [00:44:42] Speaker 04: There's no indication that it's possible because that was not something that she wanted, that's something that she would put about her mind because it was such an unpleasant experience or it was embarrassing. [00:44:57] Speaker 04: So there's not really evidence that she intentionally didn't disclose it. [00:45:02] Speaker 04: It's possible that the investigator prompt her memory by asking several questions, which we don't know what they were. [00:45:08] Speaker 00: What am I remembering about that the record didn't put in the actual juror's statement? [00:45:17] Speaker 00: It was hearsay. [00:45:20] Speaker 00: that it was the habeas investigator's statement of what the juror said. [00:45:24] Speaker 00: What do I remember? [00:45:25] Speaker 04: Yes, that is correct. [00:45:27] Speaker 04: We don't have a declaration of the juror stating those responses. [00:45:33] Speaker 04: What we have is the declaration of the investigator saying, this is what the juror told me. [00:45:37] Speaker 05: Do we know why we don't have that declaration? [00:45:39] Speaker 05: Is the juror deceased? [00:45:41] Speaker 05: Is there some other reason? [00:45:43] Speaker 04: We have no information as to why there was not a declaration of the juror. [00:45:47] Speaker 00: Well, could the California Supreme Court reasonably have not considered that as hearsay? [00:45:55] Speaker 04: Yeah, the California Supreme Court, under their case law, has said repeatedly that, even in instances for motions for a new trial, that they don't require a further motion or hearing [00:46:08] Speaker 04: based on hearsay declarations, because they're not going to upset or even require further investigation based on hearsay declarations. [00:46:15] Speaker 04: And the case law that we cited in our brief showed instances of where there was counsel or an investigator actually saying what the jurors said, and the California Supreme Court said that's not sufficient, and found that the trial court didn't err. [00:46:28] Speaker 01: And wasn't the questionnaire somewhat ambiguous in whether or not she did misrepresent that? [00:46:33] Speaker 01: Because it said, did she ever consult with a psychiatrist or psychologist? [00:46:37] Speaker 01: But if she was involuntarily held because of something, that doesn't seem like the same thing as consulting. [00:46:45] Speaker 01: At least she would not perceive it. [00:46:47] Speaker 01: It's a reasonable person to say that that's not me consulting with someone that's someone examining me by force or involuntarily, but that's not me consulting. [00:46:57] Speaker 04: Yes, I would agree with that. [00:46:58] Speaker 04: Maybe as attorneys, we can do a broad thing. [00:47:02] Speaker 04: But maybe as a layperson, you would think, no, I never consulted somebody. [00:47:07] Speaker 04: I was put in there. [00:47:08] Speaker 04: Because the declaration of the investigator does say that she mentioned that it was a scary place. [00:47:14] Speaker 04: And they were on her lock and key. [00:47:16] Speaker 04: And she was in a cell with other people. [00:47:18] Speaker 04: So that doesn't sound like some voluntary commitment on her behalf. [00:47:23] Speaker 04: So yes, the question could easily not have, and the district court noted that in its order too, that it didn't show that the juror actually intentionally did not disclose. [00:47:37] Speaker 04: And actually, the juror's other responses showed she would be a good defense juror. [00:47:43] Speaker 04: indicated that she would be considering psychiatric evidence, that she answered no to questions that said, oh, a defendant can find anybody to say whatever they want. [00:47:52] Speaker 04: She disagreed with that strongly. [00:47:54] Speaker 04: During Vodaya, she told the defense counsel that she would definitely consider his past family history and any psychological problems that he had. [00:48:02] Speaker 04: So on balance, it didn't show that she was biased. [00:48:07] Speaker 04: And in fact, she never told any of the jurors by the declarations that the Habeas Council has presented to the court. [00:48:14] Speaker 04: There's no declaration of any jurors saying she discussed that information, which would indicate that she somehow was intentionally holding that back and was using that for [00:48:23] Speaker 04: to be biased against Mr. Combs. [00:48:27] Speaker 05: You say unbalanced because the investigators declaration also reports that she said from that experience she knew what crazy people look like and Mr. Combs didn't appear crazy which would suggest that she may have had some bias and that she was discounting any psychological or mental illness that could have been [00:48:49] Speaker 05: a mitigating factor to suggest life without parole rather than death? [00:48:55] Speaker 04: Well, one of the things we also have to find out is if those statements are part of what her thoughts during deliberations, then those statements aren't admissible under either California law 1150 or the federal rules over 606 because statements regarding deliberations aren't admissible to reverse a verdict. [00:49:18] Speaker 04: But jurors are allowed to rely on their experiences. [00:49:24] Speaker 04: And just because she had this experience doesn't mean that she actually was biased. [00:49:31] Speaker 04: And she could, she said jurors can use their life experiences in the jury room. [00:49:41] Speaker 04: And so that doesn't actually indicate that she would be biased against Mr. Combs. [00:49:55] Speaker 04: Unless the court has any further questions for the reasons discussed today and set forth in our briefs, we request that the court affirm the district court's denial of the first amended habeas petition and dismiss it with prejudice. [00:50:13] Speaker 00: Thank you. [00:50:13] Speaker 00: Do you have any additional questions? [00:50:15] Speaker 00: We don't appear to have additional questions. [00:50:16] Speaker 00: Thank you. [00:50:28] Speaker 03: Your Honor, if I may, you mentioned the evidence introduced at trial. [00:50:32] Speaker 03: However, the separate in a jury that heard the case actually deliberated for almost five days to reach their verdict. [00:50:40] Speaker 03: And all it takes is one juror to have doubt that Mr. Combs deserves the death penalty. [00:50:46] Speaker 03: That's why the additional evidence developed in mitigation could have led to a different result. [00:50:51] Speaker 03: And it's not true that we're only basing our claim on the fact that they couldn't find the mother. [00:50:58] Speaker 03: That's just one of the issues. [00:50:59] Speaker 03: But the complete claim is that counsel did not conduct a proper investigation in a timely fashion as required by Strickland and its prodigy. [00:51:09] Speaker 03: A complete investigation would have revealed that Combs himself actually is biologically disposed to mental illness. [00:51:17] Speaker 03: His mother, his biological mother, is mentally ill. [00:51:20] Speaker 03: Both his half-sisters are mentally ill. [00:51:25] Speaker 03: One of them, we have a declaration, actually started ingesting drugs as early as 11 years old. [00:51:33] Speaker 03: By the time of Michael's trial, his older sibling was already involved in the criminal justice system because of her mental illness, and that was a sister that the mother did not actually rear. [00:51:44] Speaker 03: She gave her up for adoption to her brother. [00:51:46] Speaker 03: And that both the brother and the sister-in-law were readily available to testify had trial counsel bothered to conduct that investigation. [00:51:56] Speaker 01: Counsel, can I ask one question? [00:51:57] Speaker 01: So one of the prongs was that trial counsel did not investigate the mother until too late. [00:52:04] Speaker 01: It was too late. [00:52:06] Speaker 03: That they did not start looking for the mother. [00:52:09] Speaker 03: We were not saying that they didn't look for her at all. [00:52:11] Speaker 03: We're just saying that they didn't do it. [00:52:14] Speaker 01: When should the trial, when would a reasonable counsel start an investigation? [00:52:20] Speaker 03: As soon as they get appointed. [00:52:21] Speaker 01: So what's the delta then? [00:52:22] Speaker 01: Pardon me? [00:52:23] Speaker 01: What's the difference that you're saying? [00:52:25] Speaker 03: Almost two years. [00:52:25] Speaker 01: Two years in time. [00:52:26] Speaker 03: Counsel was appointed in 1991, sorry, 1992. [00:52:30] Speaker 03: By then, [00:52:31] Speaker 03: Dr. Oshman's report was already available, telling them how important it was to figure out his biological makeup. [00:52:39] Speaker 03: And the fact that Your Honor's mentioned that the Osherman report came into light, that again speaks highly of what was going on at the time of trial. [00:52:49] Speaker 03: Just as in Wiggins, the record of the actual proceedings underscores the unreasonableness of the investigation. [00:52:57] Speaker 03: Here, there was another instance where counsel didn't know what counsel himself should have known. [00:53:03] Speaker 03: At ER 2789, [00:53:06] Speaker 03: When they're cross-examining Dr. Kenyon, they didn't realize that Dr. Kenyon had himself been appointed as one of the competency experts for the defense before. [00:53:16] Speaker 03: And I quote, and it wasn't until today that you found that we didn't know you were appointed at that time frame, correct? [00:53:23] Speaker 03: So that reflects their inattention as opposed to any strategic decision that guided some of their acts. [00:53:33] Speaker 03: Your Honor asked about the co-defendant Purcell. [00:53:36] Speaker 03: She was actually granted parole by the California system. [00:53:42] Speaker 03: Dr. Adler himself talks about the significance of the fetal alcohol syndrome. [00:53:47] Speaker 03: That would have rejected or contest the notion that Mr. Combs had actually antisocial personality disorder because that type of diagnosis has to be eliminated before one can argue he has actually antisocial personality disorder. [00:54:06] Speaker 03: As to the juror claim, as we cited in our briefs, even the Supreme Court has demanded an evidential hearing of some sort based upon declarations. [00:54:18] Speaker 03: And Your Honor, all declarations are hearsay, right, because they're out of court statements. [00:54:22] Speaker 05: Well, the problem really is that it's double hearsay. [00:54:25] Speaker 05: So you have the investigator reporting what the juror said. [00:54:31] Speaker 03: Correct. [00:54:31] Speaker 03: And in some of the cases that we cite in our briefs, that's actually the same instance, because the Supreme Court itself recognizes that it's very unlikely that jurors themselves would be able to actually sign those declarations attesting that they may have misinterpreted what they provided and what year. [00:54:48] Speaker 03: And that was the case here. [00:54:49] Speaker 03: And presumably, we had an evidentiary hearing [00:54:52] Speaker 00: Well, it seems as a matter of California law, they would have been able to say they don't accept that double hearsay. [00:55:00] Speaker 03: But Your Honor, there are exceptions. [00:55:02] Speaker 03: We all know there are exceptions to hearsay statements, and this would have qualified. [00:55:05] Speaker 00: Well, but how are we looking at what the California Supreme Court did? [00:55:10] Speaker 03: Whether or not it was unreasonable to deny further factual development based on the allegations that were reasonably available. [00:55:19] Speaker 03: That would have been, Your Honor, and the state just retired, actually somebody else based upon an hearsay allegation, when the statements were actually inculpatory at the time that they were made. [00:55:32] Speaker 03: So it would have been admissible, assuming that the juror is actually still alive. [00:55:39] Speaker 03: And with subpoena power, we would actually compel her to testify. [00:55:43] Speaker 03: And if she did not testify at that point, what she told the investigator would be able to come in as a statement against self-interest. [00:55:51] Speaker 05: But at the time you were presenting this to the California Supreme Court, did the defense argue for a hearsay exception or provide an explanation [00:55:59] Speaker 03: Your Honor, some of the cases that the warden actually cites on her... Seems like you could say yes or no on that. [00:56:06] Speaker 03: Yes, Your Honor, we could, yes. [00:56:08] Speaker 03: All that California requires are reasonable, available evidence. [00:56:11] Speaker 00: Ask for an exception to the double hearsay. [00:56:14] Speaker 03: We didn't even get to that stage of litigation, Your Honor. [00:56:18] Speaker 03: The court never even bothered to order an order to show cause. [00:56:21] Speaker 03: So it was just an informal agreement. [00:56:22] Speaker 05: The state objected that the declaration contained hearsay, that it was a hearsay. [00:56:29] Speaker 05: And so my question was very specific. [00:56:30] Speaker 05: Did the defense respond? [00:56:32] Speaker 05: Did they offer an argument that there was a hearsay exception that applied or provide an explanation for the lack of at least a declaration to ensure? [00:56:41] Speaker 03: I would have to check what was argued below. [00:56:43] Speaker 03: And we'll figure that out. [00:56:45] Speaker 03: But what I can say is that the Supreme Court cases as well as the California cases have conducted and proved as to the partiality of a juror based on similar evidence. [00:56:56] Speaker 03: based on similar statements that the jurors have made to other folks, including Bremel and Parker v. Smith. [00:57:03] Speaker 03: So it's not uncommon for claims of this type to rely on what jurors may have told others or what others may have heard. [00:57:12] Speaker 00: Well, they can do what they want, but maybe no one objected. [00:57:15] Speaker 00: Maybe no one objected. [00:57:16] Speaker 00: And here there was an objection, and I'm not hearing that there was any [00:57:23] Speaker 03: But what I'm saying is that objection is improper because we don't have subpoena power to compel the juror to provide testimony. [00:57:34] Speaker 03: So how could we compel the juror to say something or to sign something that the juror may or may not want to sign? [00:57:41] Speaker 03: And all that California requires are reasonable available, and that's under Duval B. People. [00:57:46] Speaker 03: All the California requires are reasonable available documentation. [00:57:53] Speaker 00: Okay, you've gone into overtime. [00:57:55] Speaker 00: Unless my colleagues have any additional questions, that will conclude your argument. [00:58:01] Speaker 00: All right, thank you both for your argument. [00:58:02] Speaker 00: This matter will stand submitted. [00:58:28] Speaker 05: This court for this session stands adjourned.