good morning may it please the court my name is katherine kimball windsor and i represent you palin in this case miss martinez this was a very short trial it was a trial that involved four witnesses the defense waived opening statement into dark put on a essentially part of an afternoon part of the morning and the arguments and instruction spilled over a little bit i think and into one afternoon only one of the four witnesses who testified was cross examined and for that one witness who was cross examined the district court restricted the scope of cross examination and that's the issue that i'd like to address first the confrontation clause issue at trial the defense lawyer attempted to cross examine that that cooperating codefendant about the the one benefit that she was receiving for her testimony which was that the three year mandatory minimum count was to be dismissed and the district court sustained the government objection and told the defense counsel that he could eat couldn't ask specifically about the three year mandatory minimum because it raises the issue of punishment and by doing that he restricted the scope of cross examination  violation of ms martinez's confrontation clause rights this was the the witness who was testifying was testifying through a spanish league language interpreter she had a lot of comprehension problems and because the defense lawyer was not allowed to say isn't it true that you were looking at a three year mandatory minimum and yet as a result of the only way you could get less than that's three years than the three years what is to testify here today and because the answer the question the way he wanted well if he had been able to say isn't it true that you were looking at three years well that you couldn't get less than three years that that's a very different than having to say you know do you remember seeing this thing called an indictment the number of years is really the important factor because the jury's entitled to to find out what kind of benefits the witnesses getting in exchange for testimony otherwise the defense lawyers would just be always stuck with saying isn't it true that you're getting a benefit here and for from testifying and without knowing what that benefit is it really has no meaning and cross examine is really cross examination is the heart of the confrontation clause and and  concern is not the case i mean the confrontation clause doesn't mean a defense attorney can ask any question he wants regardless of the evidence rooms well that's true but the supreme court is has really held that that especially in in eliciting bias that that's the most important that's the heart of the confrontation clause right and when you restrict it in such a way the jury doesn't really learned what the bias is frankly what's important here is that she couldn't get less than three years that amount of time as they used didn't even matter what the nature of the charge was all you had a list that the jury didn't even have to know that it was the same charge that the defendant was you know i mean all it had to be i think i mean the three the amount of time that the concern about the evidence or a concern certainly could have been cured by a limiting instruction the jury is instructed you can't consider consider punishment in reaching just had i mean you're facing kind of a slam dunk here so so the fact that that the straw that didn't give a particular answer i mean she's kind of old and anyway i think it's i mean looking at this record especially with what the defense lawyer did it's i mean i certainly can't stand here and tell you that this was it in an easy defense case or that it wasn't a strong government case so that's not that's not true but looking back on it you know with the looking back at the records with stands out it's just that the defense lawyer really didn't do anything and so  it's hard now to say this is where he stands for for not doing something but you know we don't know that without a record it well we don't know what could have happened had he crossed had he chosen to cross examine those first three witnesses it appears from the record that there were things that could have been elicited that were important to bring out i mean he chose not to to cross examine the material witness to with me just with any material witness who's testify this obvious benefit that she wasn't being charged with illegal entry and in exchange for her testimony and he didn't bring that out at all in this case she hadn't she had been shown a photo lineup at the border and she was not knowledge whether she knew that the material witnesses was there and second whether she was aiding and abetting that she was actually participating in the crime as opposed to being merely present and four hundred dollars she knew the alien was in the dashboard and they were crossing the border with it now i understand a person saying well maybe the lady just likes to travel in dashboards i don't think there's anything wrong with that the material witness was there and said that she had gone down to mexico with her girlfriend or a friend of hers to go dancing and after repeatedly she was told you're lying we don't believe you at that point she confessed and hot indeed if if somebody wanted to dispute that that seems to me undercut your other point that somehow the condition of the witness should not have been brought out in evidence but that demonstrates that's what the w cross examined those witnesses and you know stand here today i don't know what she would have said had she been cross examined there were certainly conflicting statements that she gave on the record that were left you're right it looks overwhelming but that's in part certainly because the defense lawyer didn't challenge any of the testimony even when it could have been challenged and so it's that the record is always correct but i think one of the issues that i've  on direct appeal and there are many reasons for that but as was cited in the reply brief there there are situations where this court does and has in the past done it and this is a situation where  there's just there's just no many errors so many things that the defense lawyer didn't do that are frankly obvious and there's no downside in cross examining an interior witness and saying isn't it true that you entered the country illegally and isn't it true that that as well you know it's it's because of the because of the very quiet record it's you know all of the issues that i've raised are on plane air and that certainly makes  life quite a bit more difficult but that is because the defense lawyer just yet didn't object signal to the district court ahead of the trial that i don't i don't want to be trying this case and the was obviously concerned about it and actually said to him you know look are you going to cross examine this last witness i think you should and and after that you know he finally did stand up and do some  martinez didn't get a fair trial and it's certainly you know this wasn't an easy case and i'm not going to say that it was but we just don't know what would have happened had he actually stood up and raised some reasonable doubt about whether she was going to be paid and there was conflicting evidence about that she confessed to them well in at standing the defense lawyer said that she'd been pressured into saying that she was being paid and she really wasn't being paid in the codefendant think she changed it to two hundred and then she said she couldn't get to make it three she was going to be it doesn't matter she's going to get fifty dollars or ten cents she was going to get paid for doing well i think the fact that there was right there was conflicting testimony about what you know that payment might be means that there were there was some potential reasonable doubt there the cofan it was not credible about that even if it could have been like credible and she's also lying when she says she's been in the paid four hundred bucks right you know i know i know that looking back on it without any cross examination it's hard to say what could have been done but these cases are are very tribal cases and trial lawyers deal with these facts all the time i mean statements it's true that when you've been on challenge statement that's very problematic but when you get a statement that's challenged by through cross examination by a competent defense lawyer you know when i was hearing when i was hearing trials some of the most competent defense lawyers i've ever seen didn't ask a bunch of questions to irritate the jury with things like well how do i know you were in the dashboard or things some fancy move and nothing fancy just going down the ways shows they wouldn't get up and squat you're actually right that there are times when asking now and not asking a question is the best possible thing you can do a fact that you couldn't change so you can get what you can sure try to not emphasize it well really the yet the more you focus on her the more you emphasize kind of how unfortunate the conduct humiliated to have the agent testify to the same well that it was repeatedly brought out and it was brought out and it didn't i mean what the government needed to bring out was that there was some conversation and that what that conversation the material witness was hot and sweaty and brought out through the primary inspector she was so you've heard the hydrated her skin was clammy i mean the i can if it were just that one question i think you know i wouldn't have raised the issue but it was just this is a short trial not happen and again and again and again the jury was told you know she was in this horrid condition and this is an issue which you know in san diego is a pretty i don't know hot issue so i don't worry you know it's something that i'm sure that the governor was aware of defense counsel wasn't aware of it obviously because he didn't object or raise the issue but i'm sure this court has seen these claims multiple times so there's really only one reason to bring it up repeatedly in that way and that's it to teach to tell the jury look this woman w really horrible situation and to raise raise that bias or to raise that kind of prejudicial evidence  to their questions with respect with respect to the first three issues that the court would like me to address or shall i just go through the arguments in order with  it support her testimony that she did speak from the dashboard and sam adams what day it was used to demonstrate that because what the defendant had done was really the aliens conditioned to the occupants well to what i mean that was what she had said but i mean i think you're right to the extent that it could have you know she could've said anything i mean what was relevant was the fact that she had said something and at that message and then the than her answers were given the court you know if you spent many pages of the transcript trying to get at it and i think any trial attorneys have that has had that experience where they're trying to extract an answer and it's just not happening and it certainly to as long as the jury doesn't know that the charge is the same and therefore can infer that the penalty is this thing well unfortunately i think you i think you brought out the charges which were identical to the charges that the defendant was on trial for and you run the risk and i think that's what the district court judge was with but isn't that the way that condition inquiry so you protect the cross examination  with i think that would have been another way to go i mean it would have been another tack that the district court judge could have taken to make it clear that he's not to inquire about the charges that she's facing so that the jury doesn't make the connection otherwise you run the risk of defense counsel communicating to the jury through the witness that shares the sentence that my client is facing on c n n but he didn't do that so the question is isn't it just plain flat out wrong to disallow a reference to the exact benefit witness got i would can i would concede that that it was error for the district court to placed that that limitation on him i think especially after noting that noting the trouble that defense counsel was having getting that point across but i do think that if the was harmless error because if you if you take a look at the witnesses you know you take your witness as you get them and in this case you know she didn't understand that there were two terms as she didn't understand that one carried a harsher punishment than the  other probably understood is that she pled guilty and agreed just of all right and she was going to get a benefit of serving a whole lot less time that's the question that he was unable to ask in those terms well actually i think he was allowed to ask it i mean i think he could have printed just  that or you face in three years otherwise you're not getting three years and that right well you know you're right in the way the district court judge allowed him to say it was you know will didn't didn't you get a break are you looking at less time because of the plea agreement that  claim on direct appeal which is we have the record is very scarce at this point right your problem here is unless we give some thought to that issue can that issue ever practically be raised given the depend ration in this country is likely to imagine exactly how long she's serving time i mean she's out of the country when she's like oh yeah and practically speaking when she's out of the country how is actually supposed to pursue that baby i here i am but that was unfortunate so you know that we just heard from from your opposing counsel there really wasn't a defense being offered and we should look at the i a c claim now we don't ordinarily do so but is this one of those cases where we should i think it would understand practically speaking i understand what you're saying which is you know the claim really goes away when the defendant is is removed from this country and we don't know where that's going to take them i'm sorry we don't know when she's going to be removed from the country doing well her re i thought we had just dozens of cases they come here all the time that had been gone through the immigration process and the different claims and into the v i i and then us and people here for years after you would thought they were then removed so how do we know the answer to that you know what i really don't i mean i just sort of conceding that she's going to as soon as she stop serving time they're going to ship out of the country i did not and not in the in the system i've seen so far well just from my limited experience i just i have i have noticed that it actually wasn't something that i had thought of until judge clinton had raised it but it was you know this is just not the extraordinary case and i think it would would set a precedent to allow an i c claim to be heard on direct appeal with the record that it's in the state that it's currently in simply because the defendant may or may not be removed after august of two thousand and seven but it's  you know this is not the case is that counsel decided in which he claims are resolved on direct appeal don't involve well had records that really didn't need further development then volved didn't involve strategic decisions for example a couple of the cases acquittal at the end of the government's case well there's a record you know there's really not much more than needs to be developed but i think you had upon what's missing here and that's coun with her but you know otherwise there's no there's nothing in the record that would demonstrate for example that her that the portion of the i took confession that she says she was pressured into making what was in fact coerced there's martina account continued in her brief that she has no direct evidence of this and disclosed agreement between the government and estrada and she only alludes to highly suspicious suspicious circumstances she returned is the fact that despite the government's recommendation of fifteen months the district court sentences trotted to eight months however the mere fact that she received a lesser sentence is that never disclosed to the defendant in that case and because of that direct evidence showing that yes the confidential informant did receive something and you asked the defendant did not know about it that's why it is court sent it down for an evidentiary hearing did a few seconds that i have made some reference and to whether or not she was just merely present or an aider and abettor and that's not something that was brought up on her appeal but there is evidence that she was not just merely present she was not just a passenger as we discussed earlier she didn't know that she was smuggling in and elian in the dashboard she did know she was going to be paid money to do that and when she approached the vehicle as a passenger at primary inspection she didn't and form the inspector i think that it's probably likely that his marching is will be deported immediately after serving her sentence that's in my experience that's what happened so unless she were able to live he had the chance to hire an immigration lawyer who perhaps could somehow get her bail or some kind of a stay and and then just finally to address the issue without that allegation in the indictment that special allegation i think it's pretty clear that by the time of trial anyway we knew that the sentencing guidelines were advisory and the government didn't have to have to prove that the reckless endangerment as an element of the offense and i don't think the government claims that either so i don't think there's any issue that that evidence