after you're ready you may be kim good morning your honour's may please the court my name is sylvia lat and i'm in assistant federal public defender from the district of arizona appearing on behalf of  twenty five years to life for the possibility of parole after the first twenty five years and all the rest of his offenses were ag found to be aggravated and to run consecutively after his first degree murder charge actually except for two ineffectiveness coupled with different errors at trial actually prejudiced mr laird to such a degree that his right to a fair trial was violated trial counsel conducted virtually no guilt phase investigation and failed to meet with mr la to develop the defense and as a result the state's case against mr laird was really never put to put to the test if you will i'd like to ask you a question about the miss joinder which she said was one of the issues you wanted to that that the use she was properly preserved and the prejudice to mr laird actually went both ways as a side matter that the prejudice of the murder charges on to the robbery resulted in a juvenile who stole a baseball cap receiving an aggravated five year term so so there's prejudiced going both ways but the prejudice on the capital accounts was that the porch i'm reasonably apply the u s v lane decision in determining that they were at their word they focused only on the overwhelming evidence of the clients of guilt as a side issue part of their analysis in determining whether there was overwhelming evidence was that the arizona supreme court and in his direct appeal decision stated that there was blood found in mr laird's house on the on his blinds that matched that of the victim that was absolutely erroneous information and that's true but exercising that wouldn't the result have had to be the same your honor i i believe  difficult to excise that because we don't know what was the actual tipping point in terms of looking at the overwhelming evidence meaning that we actually don't know what to how do i put it to me the blood on the blinds and the language that the court used they said match which immediately brings to mind that there was somehow a d n a match or something that that sounds like such scientific evidence that that might have been evidence that the court  yes this is what made it overwhelming evidence the evidence against mr laird all of the evidence matched mr laird story his fingerprints were found on soda cans some liquor in the house his finger s fingerprints were found inside the truck that he has found driving his fingerprints were never found on the murder weapons and there was actually a latent fingerprint found on the door knob that was reverse what we should be focusing on for this purpose and determining whether the state court was unreasonable i would submit that under us the lane the the decision contemplates more than just focusing on the one factor was or overwhelming evidence of he was inside the house also the main decision states that you should look to see whether or not the two clowns counts are simple distinct and easily compartment danish site and they're actually citing to a separate trial for separate charges for which mr laird was convicted that are not before this court so they have the transcript of the jury instructions at one thirty six where the court said now again there are seven counts against mr laird you should and also the arizona supreme court's fundamental stare alton what difference does that make if it's the fault it's the fault and why should we address it because the arizona supreme court's fundamental review actually in this case so we're back to the president's question that you started on yes this is a this is a circular case your honor i think your honors i'd like to take a few moments to level is that lead requested an evidentiary hearing the state claims that he failed to comply with the rules in terms of putting in affidavits records and other evidence to support his claims of prejudice the records  spent an insufficient amount of time with him are showing up prejudiced in federal court is a big constrained by the arizona just report allowance for our development of that type of evidence in arizona routinely we are denied the right to subpoena power we're also denied pre partition discovery so again it's a it's a circular issue that until we get an evidence you're hearing we don't actually we're not actually able to go back and do the discovery necessary to prove the prejudice doesn't prevent you from sending out investigators to talk to witnesses and putting affidavits in as part of your petition different rules that should apply or different levels of scrutiny that should apply to the ineffective assistance claim at this point do we look at the ones pertaining to a capital c failing to meet minimal standards of of competence you know the jail records indicate that he only met with mr laird two times prior to trial the first was for twenty two minutes and the second was for seventy minutes and also mr laird made a motion for change of counsel at the beginning of the i'm sorry nine months into the case and he says quote unquote that he needs some time to tell his side of the story i'm not going to do a life sentence for somebody else arguably that put trial counsel on notice that that he was stating that there were other people involved in that that error he withdrew that motion only after assurances from the trial court and counsel counsel would actually start doing something on this case the arizona supreme court it was the court of appeals make reference of the fact that defense counsel had actually precluded witnesses from testifying as a result of the investigation that quote unquote went to talk to a purported jailhouse snitch so the whole thing kind of fell apart and they never ever move forward with any of that and the state never used any of that evidence either i mean this is a case where defense counsel did do some things but everything that he did was basically on the defense to the state's case the state at trial he told the court that he would be presenting some witnesses the state finished their side of the story and he stood up and said your honor we have nothing further we were asked he had had no type of meaningful discussion with his client about the investigation trial strategy or any investigation further the investigator that he had you know another difficult situation it's not part of the record we have an affidavit from the trial investigator we submitted it as part of our rule seven motion expand the record that was denied by the district court and the content of that declaration talk about how she still to this day doesn't understand why trial counsel did not let her do the typical investigation that she would do as part of the case other than interviewing this one witness and then he actually actively told her not to do any sound intoxication is only a limited defense and a defense that it cannot intoxication instruction that it's a defense to intentional crimes the defense argued that well maybe it's second degree murder obtained a second degree murder instruction with with various school officials with some of his friends his story was just incredible he said that he didn't get the truck can tell six pm on thursday that witnesses had seen him with the truck before that and he claimed that he only went to her house after that so his story was completely incredible but france council was stuck with it and he did the best they could to show that well there's no nobody actually saw them but they're still overwhelming evidence for them are he admitted to two friends i killed a bitch i hit over the head of a crow if i understood the argument by new slat if he didn't do anything then applying the supreme court cases such as taylor where there was very little evidence that the down more than that there was no is no evidence there weren't any affidavits from anyone to show that his practice was not to interview witnesses on the record indicates that it was his practice interview witnesses and he went to great lengths to interview this out of state utah when i see also interviewed the the jury during its opening statement which is if the first day of trial he said that we've interviewed all the witnesses both of us of interview the witnesses we know we know what this case said we know it witnesses are going to say also this court has said that it's not necessary to interview all witnesses if you know what they're going to say and in this case we had juvenile transfer hearing which most the witnesses testified attorney clark actually impeached three of the witnesses i think gregory dream in  felde and one of the witnesses with statements they had made during the juvenile transfer hearing the defense conceded that the great clarke read all the police reports where he had plenty of evidence that he needed to to examine the witnesses or some fifty witnesses that it's not enough just to requestion evidentiary hearing you have to do it in the manner required by state law arizona law which is in state versus board on says that you have to present affidavits to the court to get an evidentiary hearing this case pursue his development of the record and he's not entitled to one in federal court just sort of allow me to go back to the first issue in this joinder issue that the state supreme court said well yes there is an error of state law on the jointer but this e called he called from the house on wednesday night and thursday morning his fingerprints were found in the house there's no doubt that he was in the house and that he was associated with but one question i did want to address the factual question it was on the blood on the blinds in this house that larry broke into his own house to get some of the stuff and it was from blood found on the blinds what happened was that the juvenile transfer hearing the officer said well that was the victim's but i want to to have a little bit of your total time remaining the same trial judge was actually also the judge that sat on a state post conviction proceedings and all throughout that whenever they talk about prejudice with regard to the video geisha evidence the court would say everything's already been presented you haven't presented anything new where is your prejudice and for the first time at mr laird's we sentencing on the capital claim the court actually read reversed itself in the sentencing transcripts and said almost none of the mitigation evidence was presented to him when he was sentenced back in the one nine hundred ninety s in federal district court we did marshal together and collect all the mitigation evidence and i think the reason why i'm trying that story is to point out to the court that that the prejudice argument is a very circular argument and it's hard to make until there's actually been a chance for adequate factual development at an evidentiary hearing to prejudice  was actually sufficient but we would expect that evidence to be different wouldn't we on a question of punishment versus a question of liability for the crimes yes but i think it's analogous in terms of a situation such as this where a trial counsel really did nothing to develop the guilt case at all for your time has more of an expired thank you very much