good morning your honor's like to reserve three minutes for rebuttal please may it please the court my name is jason campbell i represent petitioner appellant kenneth york mr york is currently serving a life without parole point out in the briefs the other likely candidate for having been the second intruder in this robbery was the state's star witness mr junior pres when you the district court has already agreed with mr york that there were two aspects of trial counsel's to performance or deficient first being the presentation of the phone records mr york spawn records which showed a that there was no three alternate story an alternate narrative for the jurors to follow so when you take that those that those two aspects of deficient performance you start looking at the prejudice the cases that we've cite in the case law in general says that when you have an overwhelming case against someone and there's you know overwhelming evidence of guilt well then errors such as these become less relevant and i would submit to the court that this is certainly not one of those cases where there's who's sister who says that york confessed to him i met him in order to wash out what is pretty strong evidence if you believe right i mean essentially you're you're you're you're saying that he threw only the cell phone evidence at least as is quite disturbing and important then but does that mean that everybody who had anything to do with paris which includes his sister his brother in law his wife and so is therefore negated well his the primary witnesses who offered inculpatory evidence regarding york our present self his then girlfriend and then by the time of trial wife warren la prez his sister tessie for as which your honor is referring to i think the issue with her is that not only did she have an incentive to help her brother but she also i the relationship between miss present and mr york was volatile and indeed very nastily so she may have also harbored an animist toward him toward mr your independent of her desire to protect your brother so you know while those witnesses  obviously they testified under oath they made statements when you set those to the side what's remaining there's nothing that is in our view more and more demonstrative of mr york then potentially being demonstrative of mr president i believe that had the state wanted to the state could have gone to trial against mr prez on virtually identical evidence aside from aside from the three core witnesses  that were surrounding pres you have any understanding of what happened to her as phone records it sounds like the prosecution or the police tried to tame them but that just never did that's minor saying we have not been able to find out what why that happened obviously you know the case was cold for several years so that you know the effort to obtain the records was i think three years after the robbery taking place his number a number of times including that's not the issue and they as i understand it they have chained yorks records at the time that's right so the question is why didn't they obtain presence and that i don't know i mean to me that's one of the major issues of this case and i don't know  if it was police i appreciate your argument that in fact these four witnesses in the vada city could have testified against her as just like they could have testified against mr york but  observations of mr york's conduct is clearly corroborative of at least some engagement and the criminal activity isn't it regardless of whether perot's was involved in i mean one theory is that perhaps both of them were involved i suppose but the important question is whether those four witnesses corroborated conduct observations of conduct which are consistent with criminal behavior and i understand the question i believe that conduct is if anything could also be construed as is mr york going to the property to help his buddy out who just got himself in a nasty situation the night before you know that the fact is that the witnesses all said that both of the two men were very shaken up upset angry there's a whole host of emotions that were described or an explanation for why knowledge i don't believe that there was you know it that's that's the whole issue of the three and call the three am call was the way that president explained away his riding up there with the bag and if that three am call didn't happen it p something else well if you look and it's true it could have been theoretically but if you look at the context of the police interview this is an important point it's you know the transcripts are in the excerpts of record and i also quoted a passage of it in the brief but if you look at the context the police are asking mr pres about this call very pointedly about this call and he and they ask him what his foot cell phone was i mean he said specifically i got the call my cell phone presses that and in the same breath he's telling them what york cell phone number is he also says he saw multiple missed calls from new york that night which would circumstantial evidence that he saw that miss number mr york missed number so i think that the by someone who was clearly aligned with your client how do you respond to that and that's true she was the one witness who was definitely supportive of mystery or she only testified after being given a threat that you know she might be prosecuted  if you look at her testimony and i urge the court to please review the testimony particularly brian hart and penny more alice first of all she was uncertain of when this supposed home invasion occurred it's very clear that by the time she enters into mr york's life he is on the right i mean as as your honour's have pointed out he was assisting with the just disposal of evidence at a minimum based the testimony of those individuals so he was involved in it whether it was at the time being there a part of the robbery or after the fact now it's that i mean the first part of the statement was i was involved in a home invasion second i'm on the run so if you make those two connections then basically what you're saying is that he has said he's involved in a home invasion which resulted being on the run and if he's on the run for this particular offense the home invasion relates to this particular offense well it could i mean i think that's the the problem her her statements are so vague that in my view i mean i question whether or not those statements were specific enough to even be allowed in as evidence in this case but even if you take those statements i don't believe they overcome the damage done by the deficient performance which i think is the real issue if you take all of the statements all four of the witnesses at the vada city and add any morality i still don't think that because it was so vague i think the jury  would have had serious doubts about that when i doubtless she said that he said that somebody read him at a point to think about him was that she shouldn't say when he said that she didn't say when or who it was she has a childhood friend i mean th  which point the finger doesn't carry this this implication of guilt necessarily the prosecutor is the one who started introducing the language ratted me out ratted me out is more inculpatory way of describing it so that was it was a very see those are subtle distinctions i said pointing the finger you know you talk about the weight of ineffective assistance of counsel in particular alibi the alibi defense is really difficult here because it's coming theoretically to the lawyer from the mother that same person who was present at a meeting with various witnesses who basically said who told them what to do to make sure they wouldn't be arrested right her testimony is really subject cross exact cross examination which impacts doesn't the value of the alibi defense sure i you know i i think that it could very well have impacted the value of the grandmother obviously wasn't there for that for that meeting but at that point i think it's pretty apparent that junior pres kenneth york are very close friends obviously test peru as was your girlfriend the time and then you have lauren lacky they they were all they all felt like they were in it together  and i think that that was that's the impression that you get when discussing the mrs york's involvement in this is that it was an effort to try to help all of these four kids help him it might not be the right word but avoid avoid penalties so i don't necessarily think that would preclude the presentation of the alibi and in the end it would be a put up to the jury i think you have biased witnesses on this side for prez biased witnesses on this side for mr york you know and then you also with the three a call three am call the lack thereof in the phone records in my view is far more damaging than jeanette yorks statements to the for the for kids at the time i mean you know time's up i mean i'm sorry and then you're about to thank you thank you very much  replying argument illustrate the fundamental flaw behind his petition which is that this court does not sit in the novo review or is the thirteenth juror as it were on the trial to ask whether this evidence was sufficient or whether it would decide in the first there was but in terms of the importance of the phone call the as i understand it the prosecutor told the jury there were no phone records which was natural that's right so it's not only that i think that it's not only an  icy problem but it's that and with regard to introducing the phone records but also as a result of that the jury was allowed to believe that the phone records didn't exist and they asked about it moreover they did as with the phone records judge burrs on i think one could interpret the prosecutor's response as just being that there's not that the papers didn't exist but rather that there were no phone records that would confirm or deny the story but that's not true there i mean we do have the missing person as phone records but if we take the testimony that they communicated by cell phone then it's not true that there were no phone records that undermine the story if you interpret the testimony the way appellant does that they did communicate that your communicated to present myself then yes that's true judge friedman but i think is the panel's questioning indicated that's not unequivocally what is said pres might even thought that the communication was coming by cell phone because that's how they normally communicated but it's possible that your contact them from another phone because he was trying not to use a cell phone and that presents assume that was from a cell phone what did prize also say that there were several earlier calls that he didn't pick up yesterday and what shelley would numbers he might have said that he saw them but again i don't think there's any i think that the very least the absence of the phone records unquestionably shows a person shows that parts of presence testimony were not accurate i think that is absolutely true just goes on but  that again has to be weighed in light of the other evidence here but the fact that a juror at least one juror maybe it was collectively they asked this question about the phone records doesn't that suggest that the jury cared about the phone records and if they had gotten the phone records they might have anything else that are the only question they ask that i'm aware of just me to suggest that they thought that was pretty important right so it's kind of a leap to say well they bothered to ask this question but actually they didn't really care about it it doesn't really go to whether they had a reasonable doubt i witnesses at nevada city and i think the judge the witness who move judge chen the most into nine the petition was mr hart and appellate makes his argument at the heart actually was not an unbiased witness but if you read his transcript that that simply doesn't borne out heart doesn't place york at the apartment does he was hard says is that appellant told him first of all he says that he got into shit that went bad in other words he didn't just say shit went bad he said appellant got into shit that went bad that again i think clearly indicates his yes presence at the scene the second thing that he said was that he was with the need when it went down the need in this case i think everyone agrees is mr morehead and so he was there when it went down now that did occur a half a day later but the when it went down i think again a jury could reason we infer that that was he was talking about the robbery not only that but this is not just my reading the transcript judge friedman this is also reading the transcript by the district court of appeals and by judge chen and not a clearly erroneous factual find to say that that's what part was that's what heart heard  appellant was there with mr morehead when the shit went down i think that given that hard statement is actually inculpatory he's not a biased witness if you read the transcript of the testimony he's clearly actually a hostile witness the prosecutor really had to work on mr hard to get out the testimony that he wanted from him so we have an unbiased witness making culpa tory statements about appellant on top of that as judge burton indicated there frankly there's third thing i'd ask the panel look at is the post crime conduct and i'm thinking of two things in particular first of all york is the one who gets rid of the gun york is the one who burns the clothes and york's mother is the one who makes you expose yourself to an accessory charge by convening the meeting and saying look everyone let's all talk here's a name of a lawyer here's the number of a lawyer don't say anything lay low active everything's normal and is it also true that during that conversation the mother to these  three other people that she actually turned to paris and said you know i understand that you are at risk too for having taken the bag up to nevada city so essentially there must have been i would suppose some implicit discussion about how the offense took place and what corrupt prez's role was not that he was at the crime scene but that in fact he was an accessory after the fact by taking the bag out absolutely again that's testimony is from one of the perez circle of people true it was the it was the pres family members who talked about jeanette's york involvement but i would point out that in her declaration of a summit for hay vs you would think that she would not only explain her role in the alibi but she'd also say oh and by the way this is how i would explain whether this did happen with this didn't happen what i really meant to do i was really looking out for prez i think that i'm sorry i shouldn't say i overstated there is if you compare the evidence of what he did to the evidence of what york and his mother did and again more his mother's putting herself out there on the excess or charge it isn't reasonable for a jury to conclude that oh they were doing all think actually his mother in her declaration havey his position i believe that she tried to explain that away by either denying that he was changing appearance or explain that oh that's sort of what he does if if this robbery had been york's idea but he wasn't there and then he helped cover it up would he have been eligible for the same sentence if those if all his involvement was was suggesting the idea and helping to cover it up i don't believe so i don't believe any of the special circumstance and is there anything that's felony murder so are you suggesting that he would not be culpable in this particular offense if he was just planning it out but didn't actually walk into the place i believe he called before the felony murder so for first degree true judge birds on but i still think that it is a mystery though why they are trying harder than it seems that they are doing more and that i think is the mystery the judge is still been faced with well there's i mean is there any reason why the mother wouldn't try to help him cover up something that could give him life in prison i really understand this argument that the mother wouldn't be trying to protect him even if even if all he had tried to do is cover it up without it being his idea in the first place i mean it seems like the testimony and the mother's behavior is very consistent with this other story of his role except that wasn't that's not even to tell a story to the state a story is i only got involved after the fact i didn't know anything about this going on beforehand so you would have to not only disbelieve bread you also have to disbelieve appellants own so what if he was only involved after the fact what would he be eligible for as a crime then and accessory charges far short of first the first three murder just ruined the final thing i'd like to mention before was the shooter there after the fact so this i'm trying to understand th testimony about being with the black guy when things went you know is it possible that that's about the coverup i don't leave any testimony about morehead participating in the cover up activities or to what extent he did and he's never been apprehended so we don't know just for them i'm still concerned about the closing argument and the cell phone records and what was said was by the prosecutor and i wish we had cell phone records i wish we had telephone records to corroborate that bites and then he says you're talking about cell phone records numbers change it could be very difficult so we've got to go with what we've got we don't have that and the that the defense lawyer also should have known that there were cell phone records and in fact he did over the weekend figure it out but at the time it was john he didn't object on that ground in the admission was importance it's basically as high as one can be in this kind of a case and then the question becomes you know what's on the other side but in terms of the importance of it it seems undeniably extreme i would agree there is important again all right your time is up thank you very much very helpful so the first thing i want to respond to was picked to mr hart's testimony and this is the first time actually that the state has acknowledged that those least in the briefing and what not before those two statements did come half a day apart  it wasn't as though hart said this shit went bad and he was with a black eye he didn't say it like that but that's how the state's been presenting it also it's worth looking at if you actually do look at heart meaning what he didn't say he it was two error anyway if you i mean first of all he made it he was smoking marijuana all day he admitted he was trying to stay away from the situation didn't want to know what was going on he also talked about how pres in new york were talking with one another all day they were both saying if you take the very you know central importance of the three am call and you try and balance hearts rippin you mirelle it is testimony against it to me there's no question that the three am call occupies a far more serious place in this case than those those witnesses heart when he that when it went down that's the guy he was talking about the clappers when it went down there was a black person with him who