good morning my name is vicki moral buchanan i'm here on behalf of jesse mendez and i would like to reserve three minutes please jesse mendez is spending life plus twenty three years for the attempted murder of officer kevin macdonald neither the trial judge nor the jury knew that there were two eye witnesses that saw the shooting and identified the shooter as jeremiah di not mr mendez and the reason that the judge and the jury did not know about the eye witnesses is three reasons each of which warrants hey b s relief first of all just a minute  if i might it seems to me reading the record that counsel knew what the exculpatory evidence was didn't play trial counsel had the only thing he knew was yes and therefore the only thing we're talking about is if these items which are merely added oh i don't even know that they add anything because he had all the exculpatory stuff right in front of him he knew about that all this is do we have other extraneous information which could have been also planned to have or or saying that that was true even though everybody said it was true that that is somehow a violation of brady is now what we're arguing about that's one part of brady however the information was withheld was a lot more than one line out of a preliminary hearing it gave the identity of the witnesses it gave details of the witnesses what they observed and how they were credible as to why they knew that it was jeremiah di that shot them or what do we do let's just start out i guess if i take notes counsel had the cell number of the informant that he gave to the officers and counsel had the recorded interview of one of the officers speaking with the informant he had all that yes and he asked for it from the government but he had all of the states he had it all so what is there what what is the brady violation he didn't have the testimony of the statement of officer wingate which was very described how the witnesses were able to observe and were credible officer roach testified specifically and in detail as to why he shocked or jeremiah die based on what he specifically says individually hurt  argued it in closing argument even though he was not allowed to get the evidence in he's as explicitly said the informant advised that not only had he observed the person who had done the shooting exit the vehicle he also observed that person go underneath the house and of course that raises the question and that is the obvious question is the shooter under that house yes he was that was jeremiah di he's the person that the informant observed exit the vehicle and go into the crawl space so you know i agree on first blush i was thinking this why does this information not turned over why is it not allowed but it was allowed it was in evidence and you have this officer who got shot absolutely identify your client as the person who shot him whereas the informants were like pay me the money i'm not going to testify i don't want to get involved and of course the better the information the more money i can get so i'll say i saw the shooter and i'll get five thousand dollars fine just say i saw the the other guy maybe i'll only get two thousand dollars so you've got issues here as far as that's concerned they gave the information before they got the money they gave it twice they came back several times the officers each one of the other important instances of the other officers testimony is that all four of them went to great pains to talk about how specific the information was from the end of the jewels from the witnesses and how credible they were and that was before they were paid any money for anything and why would they choose to say it was just dire mendez or something else all they had to say was the guys on a guys under the house why were they so specific about who they specifically sa officer wingate specifically asked he's the lead guy he was the lead investigator he specifically asked how do you know it was jeremiah how do you know it was the passenger that shot the officer and he said i saw it i saw him shoot him so there is an information problem comes and again i am trying to take your arguments and apply them to the case law that we have here i mean the prosecution is not required to voluntarily disclose information that would help identify a non testifying confidential informant unless the defense adequately shows a need for such information i guess i'm trying to figure out why this information you now see helps with that he even when you had at that point the cell number of the informant saying to me is i need all this info but way even when they got info they didn't find do anything with it was six years after the incident so it was a pellet council had a cell phone number and he had the identification six years later from some young teenagers who are no longer maybe even in the neighborhood so let's go to the statement if there is a statement that this message this informant was supposed to bring give us my colleague suggested i don't think th statement was even a statement against penal interest i don't think this statement it was only suggested if he could get a reward for it it was contrary to all the other  and impeachment of office of the officer also don't he was allowed to impeach and he was allowed to talk about this if you will different evidence in his closing argument first of all closing argument is not evidence and this is then first this is the first time he mentioned it well had opportunity after opportunity that goes to the other issue in this case of as far as the present state is concerned the state lied now that isn't something they flat out lie in the pretrial statements to the judge who was not at the preliminary hearing had no clue about the preliminary hearing he lied directly to that judge and said the only person identified as the shooter by anyone in this case is defendant mr menendez that was in the pretrial now of course the counsel for mr mendez didn't say anything either at that point in time so i'm up to i'm not taking his side that he did anything right i think if nothing else we have a very clear case of ineffective assistance of counsel for not doing anything to even look for these people or you know do employ all my worry about this argument is that even though he says there's no other leads than the ones we've told you about on cross exam he said another officer had received information from a citizen informant that the suspect had been hiding beneath the house i mean he was cross examined about the very statement you said was a lie and he gave different tests to he did not suggest that and there was other evidence of toss suspect was under the house was dying and the committed the shooting so it was no evidence that he was the shooter there was lots of evidence that he was a suspect that's suspect all right i have to correct my words and i'll take that correction so and that that was it was under suspect and the officer or him self who you said lied said on cross exam that another officer had received information from a citizen far meant that the suspect was hiding or well and that that suspect was the person that we believe shot officer mcdonald that's what counsel said in opening statement that sergeant jones would testify that  have a suspect laying here in the street that's the person that we believe shot officer mcdonald so i mean the evidence was before the jury it was just officer mcdonald must have been a very credible witness that he's the one who got shot he saw the person who shot him and there was plenty of light to see i mean why would he not have a better view than these two informants who saw something after the shots i'm sure with why would they be watching otherwise and then pieced together a scenario well that's the state testimony of officer mark they actually saw him straight on they saw the shots fired that's one of the points in this case also that doesn't make up for the fact of what sergeant jones said to the jury the jury specifically came out and asked him at the end of his testimony so here the lead prosecutor you're the lead person in this case and therefore have you eliminated all of the possibilities of anyone else including the passenger shooting  officer mcdonald which is why i never let the jury ask questions and he's said now we've ruled everybody else out well he did say we've ruled everybody else out but the honest truth is at that point he may have ruled everybody else out it well i may have may not have been right to rule him out i all he was saying is that he ruled them out now i agree with my colleague juries don't ask questions in my trials they're not there not to produce the evidence or even come up with the evidence that's for somebody who has the burden of proof but nonetheless in this particular instance i i'm having a tough time and the biggest problem i have in this is on the second trial the jury heard testimony there was a second person in the car with mendez there was an informant who directed the police to the house on parker di had been considered a suspect die and been shot and killed by the police a thousand within hours of the shooting of officer mcdonald then they said sergeant jones's testimony was contradicted by the testimony curie already had the information evidencing the police had leads the  rehearing when he was the california court was finally alerted to the fact that there was a preliminary hearing here preliminary hearing testimony there was nothing about that until the petition for a hearing and the california court of appeals said ok that's looks like pretty strong evidence that this this guy was a witness and saw the shooting and he should have been able to impeach sergeant jones on that and what the california court of appeal said is counsel did not alert the trial judge who did not preside at the preliminary hearing to jones's prior testimony if you go through that california court of appeal peals opinion there are a levon instances where they call out specific deficient performance on behalf of trial counsel now as far as the  far as officer mcdonald and his testimony and the evidence of the who shot him it's not that clear officer mcdonald changed his testimony once again from the preliminary hearing and he was not impeached once again by trial so that was is that the shooting was not that clear in order for him to have shot either one of these people to have shot officer mcdonald where he claims he was next to the vehicle they would have had to shoot through one or two or the backseat to shoot him because he said he was behind mr mendez so his his testimony was an ironclad the jury the jury would obviously thought there was something to the fact that there was another suitor besides mr mend and i see my time is expired thank you thank you may please the court ellen you know for respondent i think the court understands what our position was in terms of the brady issue so i won't repeat was in the brief the one point i would like to direct the court to was  as as judge smith stated this is as he like to expand on his point which is that this isn't the case and so there's deference given to the court of appeals opinion and there's deference given to referring to sir permit what evidence are you referring to that he could not have got the oh of the statement the statement from the informant who didn't want to testify and refused to testify right i wouldn't let it in as i would have said this evidence is so overwhelming that the defendant is going to get convicted i don't want this issue to ever come up on appeal so you know could you get it in of course you could get it in chad it changes and wonderful trial judge i'm not criticizing him but tell me why it is you are not the prosecutor down below that's right but how does the prosecutor not track down these audio tapes i mean you know you can't just rely on the cops to turn things over to you you have to say well let me go to internal affairs and see what they have let me go here and see what they have how did that happen well my understanding there one thing as i recall from the record about that was that this was in the internal affairs file and it wasn't disclosed until they had completed their investigation of  had done something connection with that investigation i really don't know why he didn't subject of the i don't know why he didn't do it but that was what i recall with the record shows in terms of the reason that it was not immediately turned over but i do want to emphasize a couple things counsel stated that something about not having wingate statement but counsel did have when gates identity and counsel knew that whe you know about getting a statement and i think there's a way that they're not investigator a day or two after the preliminary hearing which was right after the incident could have found these witnesses now and have had the actual live witnesses there talk to testify that they may  going to test but why not try isn't that something that is if in effect of assistance of counsel to not even look you have to show more than he should have done things that he didn't do but that it would have affected the outcome of the case ok if one thing he said was  gate he was he called these officers and he couldn't tell the judge anything about why he was calling him because he could he couldn't remember what had happened beforehand and he said in fact officer when gate probably the most important other witness in this case he said oh i don't need him so he submitted that i don't think you can find anything in the record that shows that this man was confident this attorney was competent in fact he showed the jury of a videotape where in offered sergeant jones after he didn't get the statement he wanted and before the jury were sergeant jones says the driver of the pontiac shot the witness now that was a self inflicted injury and the jury in this case didn't just run out and convict mr mendez they four days looking at it and they spent a lot of time with the gunshot evidence so this isn't a slam dunk there certainly was enough to create reasonable doubt in this case we need to have fair trials and mr mendez did not have a fair trial thank you ok