conditional statement information only equivocal statement taken literally if you don't do x i will do y the means unequivocally i will do y if you don't do x but it doesn't work out that way in the common usage of speech clear he wants to be represented by counsel not himself to get the word heard that's what the judge says now what that means to the judge one time the judge says one thing one time the other it sounds like he didn't understand unequivocally clear that that's what he wanted to do when i read this remark what i understood him to want to do was to get a different lawyers because his lawyer would not pursue the i wasn't even their can get when you're trying to prove your client guilty when your client is there saying i'm representing look i'm innocent dead and that's what happened at the you know in the real one if you do it all the time i on criminal cases instead of liability and damages you have guilt and penalties and that you address both and one approach to the defense is he didn't do it another is he did it to win a case trying to argue this of firstly that his client didn't do it when the evidence i understand it is it is it's difficult but it's not really difficult if you think of what the lawyers roles a lawyer is supposed to be an advocate mr stenson says he just seems to be an advocate for a position that he knows no one no continuous counsel who ultimately is going to decide what course is taken at trial and leatherman goes forward and says to him about mr james the expert who flew up from really i'm not really aware of any other cases where i had a lawyer just step out to convince the judge that his client his client is guilty when the client is sitting there s obligation to provide a defense even when the defense is available the supreme court has never said that because you think that the evidence is bad against your client you can just give up when your client wants  in order to advance the theory that the dead man's wife did it and as i understand it in washington he couldn't do it because he didn't have enough of a of an eviden understand washington law correctly and the restrictions on what the lawyer would be able to ask correctly you know that's actually washington law is that it's a question that is like most realize it's an abuse of discretion standard accordant discretion to either allow the evidence or not allow the evidence second in washington there's a line of cases that state as in this case when only circumstantial evidence  right to present mitigating evidence in the penalty phase counsel i have a couple of questions one i don't know how hurt and that will turn out to be but when i read this final and my reaction to it was if i were defending this guy there be just one way to get him some mercy maybe and that is to show that it was a crime of passion rather than greed as suggests that his partner and  partners wife were having an affair and i mean the partner and the and the yeah defendants wife or having an affair so it's crime of passion at no one pursued that and apparently it's obvious to everybody why not but it's not obvious to me yes the obvious reason is there's no evidence to support that theory but sure there's evidence they knew each other and wanted woman and they're both dead and the husband did it the the the way mr stenson committed the crime he somewhat tried to rely on that fact the evidence doesn't need to be that they actually did have an affair just so the defendant thought they were having an affair in order to try to get some mercy because it's a crime of passion well not really that your honor what he did when he set up this murder was he tried to make it look like a murder suicide like frank horner was in love with denise and he realized she didn't love him or they were breaking it off and therefore he killed her and then kill himself to then try to say well really i killed them in the heat of passion when he had made all these false statements to the police about it being a murder suicide and false statements about how he came upon the body after it was already in the house that would have conflicted with all of the forensic evidence in the in the prior statements and there's just no evidence to support that type of a claim so the defense counsel could and there's been no i don't thin mr letterman i know but take a look at it no turning one and it says he moves now he can't move we all know that until he is in process and once then there's the critical say to proceed we can agree with that right yes now with counsel not only was assigned a pleading but doesn't represent him on the hearing and says i disagree with him on representation at the most the senate automatically is obstructionist and i disagree first of all with the characterization of what actually occurred at that hearing because there was quite a bit of yes the supreme court has instructed point cases clarified that what the court is talking about is the complete denial of counsel it's not good counsel and there is no u s supreme court case that i'm aware of that held that counsel's failure to sign posted results in the actual denial of counsel which is a violation of getting counsel to counsel appeared on behalf of mr stenson and while they are not well well they did not found that stance and was represented at the hearing and which you made a motion to have new counsel or the alternative represent himself that's your position yes exactly the state court decision on this was a reasonable application determination of the facts and their fish and other federal law the supreme court u s supreme court has never put despite that much for over substance in saying that a failure to sign position presented by mr leatherman was that this is what the dispute is between mr stenson and i we are not giving out we have no intention to quit right we will continue to to represent mr stan has the opportunity to make his case for why there was an alleged conflict he failed to demonstrate a sufficient conflict that required a substitution account you can so help me on on on something else purposes of the double jeopardy clause until the jury stands up and they raise their right hands and they're sworn that's when jeopardy attaches and it looks as though the majority in the washington supreme court said the trial starts when the board here starts at i didn't study or read of perhaps closely enough to catch this they didn't see where  time when the trial starts for purposes of a thread a claim the supreme court thread i've merely said the request was made weeks before trial and that's that's what i understood so i didn't miss anything no you're now tell me why of all this court martial versus taylor said that because the supreme court has not clarified what is timely for purposes of full read it and went to trial would start that anything that the state court does that comports with the requirement something's weeks before trial is timely will be a reasonable application of supreme court precedent second when you're talking about double jeopardy analysis versus right to suffer  separate rights and to say that the u s supreme court's holding or this court holding on one trial starts and when double jeopardy attaches necessarily applies to a friend a claim would be an improper extension of there would be a delay because they would have essentially to obstruct this jury and ramp panel a new line to reschedule sixty witnesses and to give probably at least a month so i wouldn't need to impanel a new jury because start afresh and then why would they have to start afresh why not take the jury reschedule proffer three weeks down the road or four weeks down the road and then call the jury back we experiment in federal court a few years ago where one j could have on the jury if the jury is is out of court for a month they could potentially be subject to prejudicial ex parte to contacts a violation of a right to a part impartial jury and for that reason they would want to re is reason alone to deny both the motion to cite why because this court and again the supreme court has not held this so therefore it's not mr leatherman when asked by the trial judge said it would take working on nothing but this case it would take a lawyer thirty days to get so that's where we're came from that's working i was thinking that i couldn't i always was scheduled experienced criminal defense attorney who focuses on my p c more so was available montel he stenson represented the marshal would be available in a week and that's just not a reasonable determination on light of the facts of this case in light of the record in light of how long this case took he had his own practice that he would have to take care of as well there would likely be motions that mr marshall would have wanted to bring that would further delay the case the st that this was not timely was not contrary to what was not an unreasonable determination of either the facts or the federal law an accurate reading of what actually occurred and i would point from excerpts record one twenty nine through one fifty five or that was discussions with mr stenson and with mr latham is before the judge said i find this most  what excerpts of record one fifty three to one fifty five the judge after making that statement then said these are my musings you can have the opportunity tomorrow to further clarify what i've what i've said about this and mr stance and this is the excerpt record one fifty four said i do agree and understand it says what i think the word actually was that i do agree and understand that the court is addressing the problem when the court hearing and also i believe in a letter he wrote to the judge and that's that the excerpt the record twelve through twenty did make a suggestion that they could put a new attorney to represent stenson in the guilt conflict between mr stanton a mr leatherman was not so so severe that resulted in the total breakdown of communication and when the judge denied after the camera hearing the when mr stanton said i firmly make a motion that i be able to allow to represent myself the judge said again it was not timely and i find based on your indications that you really want to proceed without they do not want to proceed without counsel finding of fact because you're trying to determine based not only on what the defendant is saying but the child judges observations of the defendant when he's saying it's similar to a defendant statements during a police call a quick those those three i think that so that brings in the different head the standard for findings of fact that there has to be no evidence to support the record or something like that if it is presumed correct correct unless rebutted by clear and convincing evidence under the of the hague a statute that had to be supported by the record now it's mandatory it shall be presumed correct unless rebutted my friend convincing evidence mr stenson despite being offered the opportunity to further develop the record to try to request he did not properly invoke the right stuff representation and therefore he's not entitled to relief from that cla moving on to the issue regarding the other suspect evidence and i think we've briefly talked about that before i would like to point out that mr stenson continues to rely on evidence that was struck by the state court and that has not been properly bring it in through counsel's deposition but counsel's deposition is multiple hearsay because that's what counsel heard about what somebody else heard about what mr horner said it's not the type of evidence that would render this evidence the other suspect evidence admissible in the so therefore there is no pressure and council's decision was reasonable mr leatherman sad to say that again i missed something in the trip because the state court has have ruled that this other suspect evidence is not admissible that ruling is binding on the federal courts and there can be no showing of prejudice because even if counsel have offered the other suspect evidence it would not have come in so therefore it would not of the fact of the jury's verdict and there's no reasonable probability that a little affected the outcome of the trial therefore his claim fails under strickland in addition his claim fails under strickland because council's decision was reasonable mr leatherman sa and these are his words here if we had done this if we had read that stacked it's nice farter quote i'm convinced this jury will despise him and hate him in kill him and that set except to record one seventy five that's a reasonable determination council that investigated the evidence found there wasn't any evidence found it was not admissible and even if they presented it it would have raised prejudice to the defense because it's a reasonably competent decision by a counsel there is no the last issue that was argued and if there are any other issues i would be gladly willing to to answer questions for the last issue i will address that was argued by petitioner the exclusion of the execution and impact of that and circuit and in that case the fifth circuit denied a certificate of appeal villa being honest very similar claims that the exclusion of execution impact evidence violated the right it's under lock art clock and  project of the supreme court has said there are three categories of evidence to defendant must be allowed to present the character of the defendant the criminal record of the defendant and the circumstances of the crime the effect  execution might have on somebody else does not fit within any of those three the defendant was allowed to present extensive evidence and did present extensive evidence regarding his family regarding his family's love for him the fact that they would continue to visit with him the relationship that they have with him both as a child and that they would continue to live with him in life in prison they were allowed to argue influentially that asks they would continue to have this relationship and  execution would would hurt them in their ability to have this relationship what they were not allowed to do was ask point blank or answer point blank to question what penalty should he perceived should be a vice or death and how will this affect his family those are the only two questions they were not allowed to ask and orton not allowed to answer in the supreme court is not clearly established that that type of evidence must be admitted in the penalty phase in addition there's no showing even if there was an error and even if the state court decision in this case was objective land reasonable there's no showing a factual prejudiced on the record harmless standard the trial  excluded in this case victim impact testimony from the from mr horner's fan she is that the judge didn't simply did not allow victim impact evidence and the judge  indicated that it would open the door to such testimony if you have allowed this type of evidence and i'm trying to find the citation to  that and i apologise i don't seem to have it written down in my notes the actual paper the judge made a finding but i believe that it's also maybe referenced in the state court's opinion but it's clear that even if they had admitted this evidence regarding the effect it would have on mr sentients children the execution the state could have them rebutted that you could have presented evidence to show the a fact of this crime the victim in fact testimony and in addition what were the children have said or more really what would mr overman have said yes the children would be they did last without any parents if you if you killed father was the jury already knew that the jury already knew that if you stenson to death there are no biological parents remaining because the mother was killed by mr stern so there's no showing of actual prejudice because that evidence would not have really affected the jury's verdict in this case interest is limited to multiple representation of defendants during the same trial the court said that lower courts had in the past extended that rule to unflinchingly to all types of ethical conflicts with not a matter not rising to the level it has nothing to do with conflict of interest it's agreement about strategy and i wonder what the law is on that there is no supreme court holding on that issue what the the supreme court has held  this court to extend nixon to a case where the defendant expressly objects but there's no u s supreme court case dealing with that and there's no certainly no u s supreme court case thing that's constitutional there and for that reason he's not entitled to relief the supreme court may someday reach that issue but at this time relief is not available and finally your honour's on that point even under this circuit's case law for relief was not available because it was not did not result in a total breakdown of communications and counsel did not totally give up on this case counsel did aggressively try to save mr stenson slice and did aggressively challenge the state's evidence what he did not do was make a we've got it we've got a hearing going there's two lawyers let's say mr macleod and i are representing instead of were but i'm sure he's representing your client by doing a great deal of work but we but you wouldn't say she's representing  that we how do you write the opinion at that point the judge has to do what start everything at a point another counsel to represent the defendant to understand all of the evidence in to to try to figure out whether this is a sensible position or not what what says he's not guilty i think he's guilty and therefore i am going to make the only issue whether what the penalty is which is a totally different question from what's got it out a judgment about what what is going to happen is a result of the trial if i understand your argument right since it would be perfectly timely at that point every defendant in that situation is thinks his lawyer was in cahoots and doesn't agree with his strat every defendant is why wouldn't your clients be entitle to get rid of the public defender's office and get somebody else appointed every time they're not no one is claiming that mr stenson is entitled to a lawyer who tells them what he wants to hear and no one is evidence is not necessarily doesn't prove that this distance and killed mr horner and his wife but it does directly contradict the statement various figments that he gave to the police