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23-1224 Pogosian versus Weiser.

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May it please the court.

[00:00:13] Speaker 01:
My name is Michael Juba.

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Can I represent the appellant, Alexander Pogosian, in this case?

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I would like to reserve three minutes for rebuttal argument.

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With me at council table is Madison Whitley from my office.

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Your Honor, Mr. Pogosian was charged as a juvenile in adult court and later convicted of five counts of murder in the first degree.

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He was originally sentenced to five consecutive sentences of life in prison without the possibility of parole.

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Mr. Pogosian was convicted based in part on the videotaped statement of a non-testifying accomplice who inculpated

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Mr. Pogosian in these crimes.

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That person was Mr. Mark Dorosian, Arthur Mark Dorosian.

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Mr. Mark Dorosian's videotaped statements at trial were different in kind from any other witness and any other evidence presented against Mr. Pogosian in this trial.

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Mr. Mark Dorosian was the only direct eyewitness in this case who told the jury

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that he was present when these crimes were committed.

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He knew Mr. Pogosian and could identify him, and he saw and heard Mr. Pogosian commit these crimes.

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I mean, other than the defendant.

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I mean, wasn't there a substantial record of other witnesses who testified that on the day of the murders that the defendant himself, through his own statements,

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put himself up the scene and made statements about he and the other shooter is the ones that committed these crimes.

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There were witnesses who testified later regarding Mr. Boghossian's alleged statements to them about what happened.

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That's a factor that this court considers when this court looks at the Van Arsille factors and whether the introduction of this erroneous evidence

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was had a substantial and injurious effect on this jury.

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That is a factor that this court considers when weighing the fifth factor under Van Arsdale, specifically the overall strength of a prosecution's case.

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But when this court looks at that factor, the overall strength of prosecution's case, the analysis is not a sufficiency of the evidence analysis.

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The analysis is not whether even there was enough evidence to convict Mr. Podosian by looking at those statements.

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It's not looking at the evidence only presented on the prosecution's behalf, nor is it looking at the evidence looked at in the light most favorable to the prosecution.

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When the court's analyzing that fifth factor under Van Arsdale, this court is required to look at all of the evidence

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when determining the strength of the prosecution's case.

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That includes the evidence presented by the prosecution, the attacks on that evidence by the defense, the attacks on the witnesses' credibility that testified those statements.

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It also includes the defense's presentation of the evidence.

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The defense put it on evidence stating that there was a separate second shooter.

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So all of those factors do come into play.

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But it's not dispositive in terms of the test that this court looks to under Van Arsdale.

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And that test would be whether it undermines our confidence in the verdict?

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It is determined whether this court has grave doubts as to the reliability of this verdict.

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And the test under Brecht is whether

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there was a substantial and injurious effect on this jury's verdict.

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This court can look to several different pieces of evidence in this case and several different factors in this case to conclude, in addition to the test under Van Arsdale, that this particular evidence did have that substantial and injurious effect.

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The court can start by looking at

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the actions of the jury itself.

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This was a lengthy trial.

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The length of the trial was determined in part by the amount of evidence that needed to be presented.

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So we're skipping over the Ohio versus Roberts and going right to the second part of the analysis.

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I skipped over that because of the court's question.

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I can back up and talk about the erroneous decision from the Colorado Court of Appeals.

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The Colorado Court of Appeals' opinion.

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Well, first of all, we're all in agreement.

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We're under the Ohio versus Robertson, not Crawford.

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That's correct.

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OK.

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So go ahead.

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What were you saying about the jury?

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What I was going to say was... You were analyzing that vis-a-vis the strength of the government's case.

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I was analyzing the jury's actions when looking at whether the admission of this evidence had a substantial and injurious effect on this jury.

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What actions were you talking about?

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I looked at two separate things from this jury.

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The first was the length of deliberations.

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The jury deliberated for approximately five days in this case.

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The second factor I looked to is the verdict itself.

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They came to a split verdict in this case.

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They found Mr. Porosian not guilty of all five counts of murder in the first degree after deliberation.

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They found him guilty of felony murder, five counts of felony murder, and five counts of murder in the second degree.

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The other factor that I looked to is the fact that this jury requested to see Mr. Mark Porosian's taped interview.

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On that, the video was played for them, the 90 minutes or so, during the trial, correct?

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Yes, correct.

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And I have to tell you, it's pretty hard to understand Mr. Markosian.

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His head was down.

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He was mumbling most of the time.

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And in fact, I went back and repeated some of it because I couldn't understand what he said.

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So don't we have to dismiss that?

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Because we have no idea why they wanted to see that tape.

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Maybe it's because they couldn't hear him.

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The court is not required to dismiss that, and other courts have found that the fact that the jury asked to see the specific piece of evidence at issue shows the importance of that evidence in the overall strength of the prosecution's case.

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Well, but we have to analyze it in the context of this case and this video, and this video is not a piece of art.

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Conceding that, Your Honor, I still think that this court can give weight to the fact that the jury requested only two pieces of evidence.

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They requested the 911 call, and they requested to see this video.

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There might be an alternative explanation for requesting that, but I still think that this court can give weight to it when deciding whether it wasn't

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an important piece of evidence in this case.

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My concern is not just with that piece, but with the other two things.

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The verdict, that they didn't find him guilty of the greatest charge, and the length of time for deliberation.

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And you say that diminishes the power of the prosecution's case.

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At least, that's how we should view it.

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You know, when looking at my concern is all that is so speculative.

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How can we consider that?

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I think our position, your honor, is that the court can give weight to these facts when considering that fifth factor under Van Arsdale.

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when looking at the strength of the prosecution's case.

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The court can also look at what happened after the verdict when one of the jury members gave a sworn statement in an affidavit to the defense investigator that she did not believe that Mr. Pogosian was guilty of these offenses beyond a reasonable doubt, that the verdicts that were entered.

[00:09:18] Speaker 02:
Well, that's not before us.

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You haven't brought a claim on that, have you?

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I have not brought a separate claim, but our position is that this court can consider that was in our briefing.

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And our position is that this court can consider the statements of the jury member after the verdict is read when deciding on or when analyzing the strength of the prosecution's case here.

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I guess my concern on that factor and the other three is there are just

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allegiance of jurisprudence that says it is so speculative for a jurist to put themselves in the jury room and don't do it.

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Isn't that our general admonition in our jurisprudence?

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You're again conceding, yes, and conceding that to be true, our position is still that it's a factor that this court can consider in the fifth factor of the multi-part test under Van Arsdale.

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The court is instructed to look at several other factors as well.

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The court's instructed to look at the importance of this witness's testimony, whether the testimony was cumulative,

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The presence or absence of evidence corroborating or contradicting that testimony on material points?

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Can I stop you there?

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Can you address that factor, the third one, please?

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The presence or absence of evidence corroborating or contradicting testimony on material points?

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Yes, in regards to the information that was contained within this witness's interviews with the police officers that they watched on the video.

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Yes, Your Honor.

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Our position is that this third factor weighs heavily in Mr. Pogosian's favor.

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that there weren't any additional corroborating witnesses who were able to corroborate this testimony on its material points.

[00:11:25] Speaker 02:
Well, what about Miss Peterson?

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I mean, according to her and according to her mother, who saw her right when she got off the phone, your client admitted that we killed five people

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claim to have shot some people and that we shot a dude, Zach, Marissa, and her mom.

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It's pretty specific.

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That's damning to your client, isn't it?

[00:11:55] Speaker 01:
Your Honor, I analyze that differently for the following reasons.

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Whether a witness testifying later describing statements of the defendant is significant for this jury is a question of fact.

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But this court, like many other courts, gives great weight to direct eyewitness testimony describing the events while they're happening.

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And this court has found

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that that fact alone can show that a claim, a federal habeas claim should not proceed.

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What about Barbara Springson?

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She said that the two people with the guns going into the Paris residence that she clearly identified Martinez.

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And the other one was the shortest one of all of them.

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And the only person we're talking about is

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the petitioner.

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Your Honor, that's not clear that the only person that's being spoken about is the petitioner.

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Many facts in this trial were... Didn't Barbara Springson identify the two possessors of the guns as Martinez and the clearly shortest one, 5'3 or 5'4?

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Didn't she say that?

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Correct.

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It's substantially different for the following reasons.

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That witness was a witness who was not familiar with the people.

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She was witnessing this from some distance.

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She witnessed four separate people.

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in and around that car, and it's undisputed that there were four people there.

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She was picking out two people.

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One was Martinez, who was not opposed that Mr. Martinez was one of the people.

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She picked out one of

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another person and described that person in various detail as one of the other three people.

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The difference is this, though.

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Mr. Martirosian was literally in that vehicle with these people.

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He heard the plan while they were driving to that location.

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He heard them talk about what they were going to do.

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He drove them to the location, saw them actually get out of the vehicle, retrieve the firearms.

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He knew Mr. Pogosian.

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He knew him by name.

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He had known him for years and he was sure and he said,

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That's the guy.

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I know him.

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I was there.

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I saw him do it.

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He saw Mr. Boghossian run in.

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The fact that he had that familiarity with Mr. Boghossian makes it materially different than a random eyewitness who's described in an event that she's not sure what's happening from a distance.

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The issue we're addressing is cumulative or contradictory.

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Now you've addressed the cumulative.

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What is there

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in the record that it's contradictory of what Martozian said.

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I think that's what Martozian said.

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Your Honor, the defense did put on a substantial amount of evidence that the jury considered regarding the identity of the second shooter.

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The defense's theory at trial was that Mr. Boghossian, Mr. Alexander Boghossian, was certainly present

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at the first shooting as there were four people in the car.

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He had knowledge of the shooting.

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He may have... But to be contradictory, it has to be, okay, there is other evidence that his brother was the possessor.

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And there was other evidence in the record presented to the jury to show that the brother

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Roman Pogosian was the second shooter.

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There was a glove found in the trash bin outside of his vehicle or outside of his residence that had his DNA on it.

[00:16:03] Speaker 01:
There was a glove found on Mr. Martinez when he was... Let me ask you this.

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In the nature of testimonial evidence rather than physical evidence, is there any testimonial evidence that is contradictory to

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Alex Pogosian going in with the gun.

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There was not any other witness who identified a separate party as the second shooter.

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And can you give him an extra two minutes so we even it up?

[00:17:00] Speaker 04:
Good morning, and may it please the court.

[00:17:02] Speaker 04:
My name's Brian Lanny, and I represent the respondents.

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I made an argument here that the district court erred in applying EDPA to this case, and I'm happy to discuss that issue.

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But I prefer to start by emphasizing some things about the Brecht standard that's applicable here.

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Are you conceding that the admission

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this testimony at trial was contrary to federal law?

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Contrary to clearly established federal law?

[00:17:33] Speaker 04:
I'm not, Your Honor.

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You're not.

[00:17:35] Speaker 04:
I'm not.

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And I'll try to concisely say why I'm not.

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I think that Lilly, which I agree is to clearly establish federal law, did not categorically bar the consideration of a statement's self-inculpatory nature in this context when assessing its reliability.

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What Lilly barred, I think, was consideration of self-incorporatory statement A as bearing on the reliability of non-self-incorporatory statement B. And there's quite a bit of language in Lilly to support that position.

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And I won't belabor it.

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It was in my brief.

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The problem for me, and I recognize it, is that in Stevens, a panel of this court, I think in more clearer terms decided that Lilly

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did establish that categorical bar in that.

[00:18:24] Speaker 02:
Well, and for clearly established, it's Supreme Court or 10th Circuit, isn't it?

[00:18:30] Speaker 04:
I disagree with that, Your Honor, respectfully.

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I think that the precedent of the circuit does not dictate whether something is clearly established or not, except I think the nuance here is that a panel of this court that is binding here has said this particular principle of law was clearly established in Lilly.

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as to volunteering.

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I think what I'm talking about here is the Stevens Court's view of what Lilly said is courts simply cannot consider the self-incorporatory nature of a statement as bearing on its reliability.

[00:19:07] Speaker 02:
Well, the district court also relied on the voluntariness, or the court below, of his statement.

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And that seems contrary to case law.

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And it also relied on the absence of a promise of leniency, which also seems to be contrary.

[00:19:28] Speaker 04:
And I agree, Your Honor.

[00:19:30] Speaker 02:
And I still don't concede.

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I acknowledge that there are some respects, some of the state court's decision that

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are inconsistent with Lilly, but that is where I think the EDPA standard comes into play.

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And my ultimate position on that question is that those inconsistencies are not enough to render the decision contrary to or diametrically opposed to the clear holding of Lilly.

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I want to emphasize some things about the Brecht standard and some of the language that the Supreme Court has used when discussing it.

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I think it's clear from the case law that it's a significantly higher bar than ordinary harmless error.

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The court has said that it's not enough to show a reasonable possibility that an error effect averted.

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The court has said that a speculative finding of prejudice is not enough, and ultimately has said that the court must have a grave doubt.

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as to whether the error had an actual substantial and injurious effect.

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And I think the word actual has to be given some meaning.

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And I think an example of to take this case and turn it into an example where I think this standard would be satisfied would be if Mr. Martirosian's statements were actually the only evidence identifying the petitioner as the person who went into these two homes and killed these victims with Mr. Martinez.

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In that case, the court wouldn't need to speculate.

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to find that it had an actual effect on the verdict, because it would have been the only evidence from which the jury could have found that he was that person.

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I want to respond, too, to the argument that some of these other witnesses... This was not a star witness case.

[00:21:06] Speaker 04:
This was not a case where the prosecution put all their eggs in the basket of one witness, or it's not a case like Jensen.

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where the prosecution presented one piece of evidence that was a make or break piece of evidence.

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This was a case where the prosecution presented a constellation of multiple witnesses who were credible in their own right and very powerfully corroborated one another.

[00:21:29] Speaker 02:
Well, they also were subject to some significant cross-examination.

[00:21:36] Speaker 02:
I mean, this was not the Mormon tabernacle choir.

[00:21:41] Speaker 04:
I agree, Your Honor.

[00:21:43] Speaker 04:
I guess, actually, I'd like to push back on that.

[00:21:46] Speaker 04:
I'll start with Noelle Peterson.

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I don't mean to imply that she was a star witness.

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I think she was one of the strongest witnesses, but I want to address the attack on her credibility.

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Noelle Peterson

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testified to this phone call with some considerable detail.

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She says that he emotionally confessed to these murders.

[00:22:08] Speaker 04:
He personally killed three of these victims.

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He and Martinez together killed five victims.

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He's going to jail.

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He may end.

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He may take his own life.

[00:22:17] Speaker 04:
He gives her some other important details.

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He's worried because Martinez wasn't wearing a mask.

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And he's angry at another acquaintance of theirs, Robbie Cermillo, because she ditched him.

[00:22:29] Speaker 04:
And Peterson's testimony was credible in its own right, because she did not have a reason to make that up.

[00:22:34] Speaker 02:
Well, wasn't she cross-examined and admitted she's on probation?

[00:22:39] Speaker 02:
And her probation officer told her she's going to get in trouble if she didn't cooperate and testify?

[00:22:43] Speaker 04:
If she didn't testify.

[00:22:44] Speaker 04:
And Your Honor, in another case, that type

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of credibility can certainly be meaningful.

[00:22:50] Speaker 04:
But here... You do concede, though, that Martirosian was a key.

[00:22:57] Speaker 04:
I concede that the prosecutor referred to him as one of the key witnesses in opening statement.

[00:23:02] Speaker 04:
Who were the other key witnesses?

[00:23:03] Speaker 04:
The other person that the prosecutor was referring to was Steve Lawson.

[00:23:08] Speaker 04:
And those are the two... They have something in common.

[00:23:12] Speaker 04:
They were the two individuals who were in the car with these two shooters, right?

[00:23:17] Speaker 04:
One at the Paris scene, one immediately after the Harvard scene.

[00:23:20] Speaker 04:
And I'd submit that that was the thrust of what the prosecutor was saying.

[00:23:24] Speaker 00:
Well, no.

[00:23:25] Speaker 00:
Well, there's another one.

[00:23:28] Speaker 00:
Roman.

[00:23:30] Speaker 00:
Roman didn't testify.

[00:23:31] Speaker 00:
Correct.

[00:23:32] Speaker 00:
And Roman wasn't subpoenaed.

[00:23:35] Speaker 04:
I don't think Roman could be found, Your Honor, was my impression from the record.

[00:23:39] Speaker 00:
Oh, I didn't know he was one of the lost ones, I thought.

[00:23:42] Speaker 04:
I don't recall, and I don't want to take a position on that because I don't recall from the record.

[00:23:46] Speaker 04:
But I think the point being that those were the witnesses the prosecution had lined up to call, and I think the prosecutor's reference to them as key witnesses should be tempered by the fact that they had this in common, and I think that's what the prosecutor was referring to.

[00:23:59] Speaker 04:
And the other thing that I think very

[00:24:02] Speaker 04:
appellingly tempers the prosecutor's reference to them is that by the end of the three-week trial, the prosecutor is standing there arguing to the jury that they don't really even need to consider Mr. Martirosian's statements to find this case proven beyond a reasonable doubt.

[00:24:15] Speaker 00:
And so I think... Here.

[00:24:18] Speaker 00:
There are so many nagging things about this case.

[00:24:22] Speaker 00:
And we have to put it in the formula where, ultimately, does it give us grave doubt about this?

[00:24:32] Speaker 00:
Well, some of the things are the length of deliberation.

[00:24:39] Speaker 00:
I mean, we all know the general popular view is that they're going to come back quick if they really nail that defendant.

[00:24:52] Speaker 00:
The nature of the verdict, they didn't find him guilty of the greatest charges.

[00:24:59] Speaker 00:
And this is one of two pieces of evidence that they asked to see.

[00:25:03] Speaker 00:
Those are nagging things.

[00:25:05] Speaker 00:
And I'm just wondering, at what point are you pushed over to grave doubt?

[00:25:09] Speaker 04:
Well, I have several things to say about those, Your Honor.

[00:25:12] Speaker 04:
I'll try to go through them.

[00:25:13] Speaker 04:
I think my end point, though, is going to be, I think what was already mentioned here was that those are all speculative considerations.

[00:25:20] Speaker 04:
But let me get there.

[00:25:23] Speaker 04:
The jury deliberating a long time, there is more than one other explanation for why they would do that.

[00:25:29] Speaker 04:
There was a lot of charges in this case.

[00:25:31] Speaker 04:
This was a very high gravity case.

[00:25:34] Speaker 04:
This was a quintuple murder with teenage victims.

[00:25:37] Speaker 04:
And I think it's certainly reasonable to think that the jury, even if faced with a very strong prosecution case, wouldn't just phone in in deliberation and would take their time to go through the evidence.

[00:25:49] Speaker 04:
The fact that the jury acquitted on after deliberation murder is important here.

[00:25:55] Speaker 04:
And I guess I should clarify that when I argue the prosecution's case was very strong, so strong that it

[00:26:00] Speaker 04:
That by itself is my argument should overcome a finding of bread prejudice.

[00:26:04] Speaker 04:
I'm talking about the prosecution's case proving that the petitioner was the second shooter.

[00:26:10] Speaker 04:
I'll admit that there is a contested issue of deliberation, of whether those murders occurred after deliberation.

[00:26:16] Speaker 04:
And of course, the jury acquitted on those counts.

[00:26:20] Speaker 04:
So when I say the prosecution's case was strong or overwhelming, I'm talking about the case supporting the counts that ended in conviction.

[00:26:27] Speaker 04:
And I think the fact that the jury acquitted on deliberation

[00:26:30] Speaker 04:
means it's very reasonable to believe that the deliberation about that element of first degree murder consumed a great deal of time and is the reason that they deliberated so long in this case.

[00:26:42] Speaker 04:
I'd also point out that this spills over and this is also consistent with the jury asking to view the interview again.

[00:26:51] Speaker 04:
There was some

[00:26:52] Speaker 04:
References to Martirosian in closing argument, Mr. Martirosian made some statements that, in my view, cast some doubt on whether the petitioner committed these murders after deliberation.

[00:27:03] Speaker 04:
Mr. Martirosian is the one who said that on the way over to the Paris scene, Mr. Martinez was telling everybody, we're not going in there to kill people.

[00:27:11] Speaker 04:
We're going in there to stash these shotguns.

[00:27:13] Speaker 04:
And Mr. Martirosian is the one who said that when they got there and parked the car, it took some time for Mr. Martinez to convince

[00:27:22] Speaker 04:
the petitioner who was reluctant to go into that house.

[00:27:25] Speaker 04:
So I think the jury asking to see the video again, an additional explanation for that would be that they had been thinking about this nuanced question since closing argument and wanted to see the interview again.

[00:27:37] Speaker 03:
When we look at the five Van Arsdale factors, you would concede that several of them lay in fact in favor of the petitioner here, right?

[00:27:45] Speaker 03:
Certainly one.

[00:27:46] Speaker 03:
Certainly one.

[00:27:47] Speaker 03:
He was not subject to cross-examination.

[00:27:49] Speaker 03:
Certainly one.

[00:27:50] Speaker 03:
Certainly I would think you would at least hint at conceding maybe that his statements were not cumulative.

[00:27:56] Speaker 04:
I do, although with a caveat that a lot of the ways there was not other cumulative evidence was I think of no moment.

[00:28:06] Speaker 04:
for purposes of the jury.

[00:28:07] Speaker 04:
And by that, I mean the seats they were sitting in and particular things that they said other than the incriminating things.

[00:28:16] Speaker 04:
There was no evidence to much of those things, but I don't think that matters outside of the context.

[00:28:21] Speaker 03:
OK, so if we get to these last three factors, how do we weigh them against each other?

[00:28:28] Speaker 03:
In other words, is it your view that petitioner here has to prevail on all of them?

[00:28:34] Speaker 03:
because of the high standard we're at here in a habeas proceeding?

[00:28:37] Speaker 04:
That's not my view, Your Honor.

[00:28:39] Speaker 04:
My view is that, first of all, I think the lines are pretty blurry between some of these factors in this case.

[00:28:46] Speaker 04:
And that may not be true in every case.

[00:28:48] Speaker 04:
I think the district court recognized that it's hard in this case to talk about the importance of Mr. Marosian's statements to the prosecution without spilling over into also talking about the fact that it was very heavily corroborated by a number of other witnesses.

[00:29:04] Speaker 04:
And you're also then talking about the last factor, the overall strength of prosecution's case.

[00:29:08] Speaker 04:
My position here really is that that last factor here weighs so heavily in the state's favor that it settles the question under Van Arstel and Brecht.

[00:29:20] Speaker 04:
And I think there is some case law.

[00:29:22] Speaker 04:
blanked on the name or if I cited it, but saying as much that that factor is often the most critical factor.

[00:29:29] Speaker 04:
And it is the reason here, Your Honor, that Brecht is not satisfied.

[00:29:34] Speaker 00:
Can we even consider the post-trial statement of the jury?

[00:29:41] Speaker 04:
My first position is that no, the court should not be considering that.

[00:29:44] Speaker 04:
And the reason is for the same reason, basically, that the trial court

[00:29:47] Speaker 04:
denied the motion for new trial, which is that under state and federal law, that is precisely the type of evidence that a court is not permitted to receive.

[00:29:57] Speaker 04:
And that is why the trial court said after hearing the defense's offer of proof, this is in violation of Colorado rule

[00:30:04] Speaker 04:
606, which is the same as federal rule 606, and I am striking it.

[00:30:09] Speaker 04:
So my position is that that is, while it is technically in the record because it was attached to a motion to dismiss, it is not in the record for purposes of our... And I understand your position on Colorado law, but we're dealing with Brecht here and Van Hartsdale.

[00:30:27] Speaker 00:
Assume we do consider it.

[00:30:28] Speaker 04:
How does it factor in at all?

[00:30:31] Speaker 04:
Assuming you do consider it, I think it goes into the bucket of reasons that would be too speculative to support a finding of prejudice underbrecht.

[00:30:39] Speaker 04:
And the reason I say that is because it would be speculative to assume that it was the admission of Mr. Martirosian's statement that

[00:30:50] Speaker 04:
bore upon this juror's thinking, or even that it had much to do with the strength of the prosecution's evidence.

[00:30:57] Speaker 04:
And I also point to, I think, when the defense was making their offer of proof, defense counsel made a comment to the effect that this juror had reservations about some of the charges, not all of them.

[00:31:11] Speaker 04:
I can't remember the exact language they used, but that is another reason why, then, if we're applying direct harmlessness, it would be speculation to say,

[00:31:18] Speaker 04:
that it would be prejudice that would reach all of the counts, if that makes sense.

[00:31:22] Speaker 03:
Didn't we say in Little John in 2013 that the fifth Van Arsdell factor alone could not establish harmlessness?

[00:31:29] Speaker 04:
I think the court said something to that effect.

[00:31:32] Speaker 04:
But I think this goes back to the fact that under the circumstances of this case and the nature of the evidence presented here,

[00:31:41] Speaker 04:
The factors are very much sort of smeared together in this case.

[00:31:45] Speaker 03:
But you're giving a lot of weight to the strength overall of the government's case.

[00:31:50] Speaker 03:
I'm giving a lot of weight because I... I guess I'm asking you then, and I agree with you that there is some smushing, to use your word, of the different factors.

[00:32:00] Speaker 03:
But if we're going to sort of put this formula and these factors together to reach a determination engraved out,

[00:32:07] Speaker 03:
Can you address maybe the first and third factors?

[00:32:09] Speaker 03:
Sure.

[00:32:10] Speaker 04:
Yeah, I think the strength of the prosecution's case, I had a discussion with Judge Murphy a moment ago about the prosecutor's reference to that.

[00:32:19] Speaker 04:
I think the import of that sort of falls away when you read the entire record of this case.

[00:32:25] Speaker 04:
And I think all that shows at most is that the prosecutors believe perhaps Mr. Martirosian's statements would provide some convenience in that it was a sort of

[00:32:34] Speaker 04:
continuous timeline for part of this criminal episode.

[00:32:37] Speaker 04:
But I think what the closing argument shows is by the end of trial, having sat there for the presentation of the much more compelling evidence, they were no longer of that opinion.

[00:32:47] Speaker 04:
And for corroboration, Your Honor, again, I spent a very long time at the podium here going through the prosecution's evidence and why the credibility attacks didn't carry any water.

[00:32:58] Speaker 04:
That's all in my brief, but there was

[00:33:01] Speaker 04:
enormous amount of corroboration, very compelling corroboration in the details of these witnesses' statements, not just the witnesses who the petitioner confessed his involvement to, but also with Barbara Springston.

[00:33:13] Speaker 04:
And that factor, I would say, would weigh heavily in our favor as well.

[00:33:18] Speaker 04:
So I would ask the court to affirm the district court and find that the Brecht standard has not been met in this case.

[00:33:26] Speaker 04:
Thank you very much.

[00:33:26] Speaker 02:
Thank you.

[00:33:28] Speaker 02:
And I think you're out of time.

[00:33:30] Speaker 02:
Is that correct?

[00:33:31] Speaker 02:
We will take this matter under advisement and we appreciate the briefing and argument today.