wilkinson in this murder trial testified against mr evans and was never prosecuted can't counsel i'm pretty attracted to your argument that it was ineffective assistance in the sense in the first branch that it fell below the standards of reasonably i can remember the formula reasonably competent counsel in the community or something like that not interviewed paul i i can't figure out why evans's lawyer didn't interview didn't at least try to interview hall hall might have said no i don't want to talk to you but try and i am not clear on prejudiced say i didn't see an affidavit gee if evan's lawyer had called me dr come over to the bar where i hang out or come over to my trailer or whatever it is i would have told them less and such and that's something that didn't come out of trial and then i didn't say a trial that's what i was looking for and i didn't see it focused on for me anyway foot focused on the prejudice from his failure to try to interview paul your honor it was clear during the evidentiary hearing in the instant case from mr hall's testimony that he was perfectly willing to answer questions that the most remarkable thing in the situation is mr hall is still subjected to the potential for prosecution for murder since the statute of limitations would run yet he got on the witness stand the trial judge never advised him of his fifth amendment rights at no time did anybody as to appoint a lawyer to assist him which in essence your honor creates the clear conclusion that he was willing to talk and the prejudiced here is it is as follows your honor mr  told the jury the following if you believe mr hall you must convict that's at page fifty of the trial record now in telling the jury that mr olson is basically challenging the jury to either accept or reject mr hall's testimony both judge polaha and judge hicks both commented on the record that in fact mr hall's testimony was crucial to the conviction of mr evans and in fact but for m hall's testimony and his willingness to testify there probably would have not have been a conviction in this particular case now we go to the evidentiary hearing on the petition for writ of habeas corpus and we discover the following  declarations by mr hall mr hall had several interviews with the d a the d a asked him what should he be charged with so the d a was letting mr hall know that you potentially could be charged he testified he knew that that meant he could be charged he testified at the evidentiary hearing the charges were already prepared against him and in fact they showed him a charging document and then they had the most important thing that they told him they told him if evans is not convicted you will be charged so the state of mind of mr hall when he testifies in this murder trial is if i don't give testimony that leads to evan's conviction this d a who sent three interviews with me is going to prosecute me for this murder and did that come out it prior it did not because mr hall had never been interviewed by mr olson hall's did evidences lawyer have either knowledge or a pretty good reason to suppose that hall would be charged if evans was convicted so that he could have asked he just might have chosen tactically not to i think that to argue that it was a tactical and strategic decision stands in the kind of the face of the court's decisions that says if you don't ever make pretrial inquiry that can never be a proper strategic decision and that's what tucker not have some sort of agreement expressed agreement and he knew that then he had to know all might very well be saving his own skin well actually your honor what makes this in effect in this more egregious is the fact that the lawyer is experienced and his experience is what allowed him to basically put on a show i don't think you're getting my questions are you i'm thinking experienced lawyer says to himself i don't have to ask all whether he knows that if they don't nail evidence are going to go after him it's obvious that if they don't nail evans they're going to go after him because he doesn't have any kind of deal so without spending days searching all the places where he might find hall at i already know the answer to that question i can safely ask it on cross and you would assume that your honor but most respectfully a review of the record he never asked it and the real problem your honor is not whether the lawyer recognize it it's whether the jury recognize it or the lawyer did not ask anything along those lines he asked questions about  the fact that he was involved but he never said to him do you have a concern that you will be prosecuted and that's where the both judge polaha and judge hicks you never asked them isn't it isn't it true that you know very well  evans doesn't get convicted in front of this jury you're going to be indicted next for that murder no idea if you know whether you've been charged with a crime i think i don't even believe he went that far your honor is to even ask if he had been charged and the real problem here your honor is all the cases point to the fact that we're not supposed to consider this as a weight of the evidence question we're supposed to examine whether the trier of fact the jury in this case was pitched position to make an independent decision by the burden assign you to show prejudice and i'm hopefully i am showing prejudice when the jury in this instant case your honor never gets an opportunity to judge the following crucial fact this guy's going to say anything he can to avoid being prosecuted usually it's a little better than usual you get an affidavit and gee the lawyer never talked to me if he had i want to say that it was somebody in a green sweater somebody in except in this case paul does testify that the lawyer never spoke to him and then paul also testifies that he would have told everybody what he told me in the hearing the evidence or hearing that in fact he felt threatened that in fact he felt that if he did not get something that happened during the course of the trial where hall had to acknowledge that he was the actual the actual shooter but in most cases your honor where you have a clear agreement one of the conditions of the police remain is that the witness tell the truth and the prosecutor then has an obligation to make sure his witness tells the truth this is more egregious because you have no agreement whatsoever except this agreement of silence or this agreement by threat and then the witness testifies and the jury does not know that in fact this man believes that in less the fellow he's pointing the finger at goes down he's going to go down and i can't think of a more  agreed use abuse of the jury system and not with with the really corroborative evidence there's a code of another witness by the name of roscoe but who incidentally gives conflicting testimony to what hall  testifies he basically colors it that he wasn't involved hall colors that i really wasn't involved until the end i think it was the guy that called nine one one right but he's driving on he's also the fellow that when hall testifies hall described as having kicked rosco give dramatically different stories on top of which all has given three or four different stories before the trial even begins so now you have a situation where you can tell the jury look mr hall is and there was no independent corroboration of each version my wife couldn't quite hold lawyer i'm sorry i misspoke why couldn't evan to his lawyer make the argument to the jury ladies and gentlemen to make that same argument without interviewing all in essence he could make that argument your honor but i would respectfully submit in the light of tucker and turner that the failure at the first level and the first phase of actual stricklin analysis to actually find out what whole state of mind was or even for that matter to try to speak to roscoe which he never did i don't find what whole state of mind with you find what paul says about what a state of mind that's correct interview people a lie a lie well on the other hand you are the proof is in the putting he never got prosecuted so it's certainly followed that if evans was convicted nothing was going to happen to hall so that kind of corroborate whole state of mind and i think it's important for that jury in nevada to have heard from the alleged eyewitness that's the real reason i'm doing this and you see the jury might have this idea while this is a swell guy who's coming in and talking about all this crime is done and my point is you could do that anyway look the guy admits he's the shooter he hasn't been charged with anything and he's doing what the prosecution wants in this case he can do it anyway  without i agree he could your honor i'm afraid he didn't but even assuming argue window that he did your honor it's much more powerful to be able to tell the jury if we're going to determine whether or not there is basic unfairness to this trial that in fact this individual is testifying because he believes if the person is testifying against is convicted he not arks it would only be better if in the interview also then look i skate even though i shot the guy and had and so long as your guy gets convicted so i'm going to say anything i have to to convict your guy and and then he says the same thing on the witness stand at trial he says what i told you is true and it's just what i said but then he's jeopardizing his chance of skating and that's why so then seemed too likely that the interview would really do that much good well i have of having having examined paul on the stand there was no compunction on his part even though the statute hasn't run to acknowledge this that this was his motivation for testifying and your honour's when we go to tucker and turner we have to also examine the question of whether or not not interviewing is the kind of ineffectiveness that leaves us not really knowing the answer to the question you just asked your honor the fundamental flaw in all of this is that mr olson didn't do what an individual who is a sixth amendment effective lawyer in a federal court in our in our district in our in our jurisdiction is supposed to do he didn't interview the government witnesses he didn't attempt to  find out what their testimony would be that's fundamental once we've established that your honor it's the burden shifting under tucker to the state of nevada to explain to you how crucial fact such as the fact that the witness was not in a mindset that he would be tried if he gave testimony that convicted they need to tell you how that doesn't fundamentally affect this this trial and the case that mr evans had our hope or what could have come out of the interview hall that would have helped it would have clearly come out that he had been interviewed by the prosecution in a manner that was threatening it knowledge not come on anything like that trial no and the reason nothing came out most i submit respectfully submit is because trial counsel didn't do anything to put himself in a position to find out  argument before the jury that tires of trial didn't do it he wasn't there that's basically as his testimony he really didn't attack hall in the traditional sense you know usually you implies somebody with the plea agreement we didn't have one here so i think at a minimum a lawyer in nevada should be in a position to tell the jury what the person's motivation for testifying is because otherwise the jury's going to think he's just a good citizen and unfortunately that's the perception they were left with because at no time at all did mr olson attempt to elicit information that he would have gotten if he had even done fundamental investigate he did he impeach them and across impeach them with the fact that he was had had had had shot and he asked them facts about where todd was and different time sequences of i've you know hindsight is twenty twenty or o ur but it wasn't the most effective cross examination in a capital case he spent two hours with tied interviewing him for a capital case that that's all mr olson did he had been involved in a very celebrated cas just before this one and he ran right into this case spent two hours with todd and the cases are legions that talk about the necessity for defense counsel especially in a capital case to spend time with it quiet he didn't spend any time with m in order to find out fundamental information wait a minute he spent two hours with them i thought the focus was failure to interview paul rather than not spending enough time with them and so one of the things that they talk about in tucker turning around or is the fact that a defense lawyer in deciding what he needs to investigate and not needs to investigate he has to spend time with his client in order to make those determination two hours can be enough yes your honor but i would respectfully submit in a capital murder case you couldn't possibly learn enough in two submit that once judge hicks found that this was a certifiable issue the court's correct in addressing the question of prejudice and i believe that we've shown enough to make to force the state to now tell you beyond a reasonable doubt why a jury in nevada was not entitled to know that this man believed that he would never be prosecuted and that's not exactly the standard that we apply well i think that when you review turner and your honor it speaks to strickland standard is a reason  reasonable violation of strickland why would it be an original sin and reasonable violation i agree and i think it's unreasonable in our juristic i said that many times that unfortunately i never seem to get it right so well i'm remarks initially to what's on my mind i don't know what my colleagues will be concerned about with you i did criminal defense and i spent so much of my time driving around to bars and raunchy residences and carry on pleasant places to talk to people and every now and then i get some useful and that actually kind often i get at least something that i could use even if only to avoid a witness as that my client said this will be a good witness and it turned out he wouldn't be and this guy looks like he's got a much more serious case than than i ever defended i never defended anything quite as this as serious as this one and that i just can't imagine not interviewing paul and what's more  impeachable that i just can't imagine it and it's sort of hard for me to say well a competent lawyer would know and anyway it doesn't matter even though i'm not clear on how it did matter well without a question the state court itself recognized that it would have been better for mr olson to interview larry hall in this particular case however they found that he had conducted various other investigations and he didn't just ignore the situation he did other things and they felt that in light of those other things that he did which included  i think the evidence that the testimony of evidentiary hearing was it was contradictory at best and let's say it was contradictory so let's say that  that that's what paul would say i don't believe there's anything in the record to indicate that he found out but at the time of trial despite the warning that what he said could be used against him at that supports your adversaries argument that whatever useful things fall might have to say that the that evan sawyer found out about it the interview he might well have been fool enough to testify to at trial instead of claiming up well i don't think that our position that he would have said anything useful hearing larry hall testified at the evidentiary hearing that the district attorney said that if he didn't get a conviction on evans he's going to go after hall larry hall testified that he did not take that as a threat and you'll find that  so you've got some contradictory evidence as well as larry hall's well nonetheless as a defense attorney you would want to know that information you could use it quite effectively in cross examination if that would have come out at the time and keep in mind that the evidence you're hearing was conducted had these conversations that the district attorney and another witness in the room at the time both denied i don't really see that it's contradicted false is all we did make a statement and i believe that was in front assistant then in the event he was not able to get a conviction i would be next for his charges ok and this was before he testified correct yes and then the part that you say puts him in there out ok did you consider this as a threat no i'm thinking that's not a threat it's a promise well he also on page one seventy eight said no promises were made he also said he denied that the da told  how to testify or that's just the way would come after him that's on page one seventy nine he affirmed that the district attorney told him to be truthful that he said that a couple of times on one seventy nine one eighty two planes what he meant by thread i don't the state's representative commenting on larry hall's ability to really directly answer some of these questions so is he being evasive is he just not the brightest bulb i don't know that we'll ever know know he specifically denied that as well which is why i say at best his statements were contradictory page one eighty three he said that he would he thought he would be charged with something regardless of the outcome he denied the da offered his freedom contingent on evan's conviction so he's kind of all over the board on this and i think these are some of the things that the state judges you know can consider in terms of it's kind of a double burden to have here today to the case tell us this reasonably problem whole and more probable than not or does it just mean a fair problem it's a good question to show you the truth i had heard that that evans believed he was threatened by what i have to believe that in addition they would have heard a denial of that but hypothetically had they heard that there was the whom knew each other prior to the event and they met the night of the event i mean the night before the event right they had met that night i would have believed i was the testimony that they had met that night there there certainly were differences among their testimony as as happened but i believe their testimony was fairly consistent when it came to appellant participation in the murder but what points w consistent i think they were fairly consistent through the two hour beating that the deceased suffered primarily at the hands of tied on the testimony to that so they actually found two reasons for no prejudice one was the corroborating testimony which they felt it would have was sufficient the other reason was they didn't believe that had larry hall been interviewed by john crime writing evidence was under rex review the fact that they didn't believe he had larry harper hall been interviewed by john olsen and he would have revealed any of this information that was on collateral review when they reviewed the district  having having said that i need to really reiterate the none of the reviewing courts today have found ineffectiveness on the part of john olson and i think there's also a common sense aspect to that now i've never practiced defense law but you've got an attorney he says he's got a working relationship with the district attorney talks to the district attorney and if that finds out there's no promises been made he knows they don't offer immunity the the  witness testifies on the stand that no promises were made that he knows he can still be prosecuted to go that extra step to say well in light of all that information that you have to then  because you have a subjective thing going to make any sense to me in terms of experience i mean all those trips to the jail and of ours and all that stuff sometimes i find out the person had some really good to say it was really useful sometimes it was something i didn't even think to ask him often it was something the police didn't know about one time i discovered my client was innocent when i thought he was guilty that's rare that happens  and that often i would discover something about the guy not even what he said like this is a big scared drunken bum that once a jury sees him my guy filled with pretty harmless  intensive scrutiny i think nevertheless so if we put ourselves in john olsen shoes at the time let's say he had spoken to larry hall and already got all this other information from the d a and from the investigators you do you still believe you have a subjective belief that you won't be prosecuted that if my client's convicted i don't think it's very reasonable to think that an attorney would have thought no under those circumstances task at the evidence you're hearing says yes he did this all saying yes he did make a statement i believe that was in front of his system and that in the event he was not able to get a conviction i would be next to be charged then where on did you think it was a threat now and we've discussed that out well as you consider that i turned himself in they didn't arrest him doesn't isn't that something that you would find out if you were the attorney and that would be pretty important knowledge in trial well again those were statements made at a hearing some six years later that were contradicted by the by the witness at the same hearing and again he also denied that the da said how to one thing if evidence doesn't get it and you're next right any any also said at that same hearing that he thought he would be charged with something regardless of the outcome so he made a number of contradictory sure and i'm sure this court knows that that factual findings necessary for the decision of the state courts may be in for just as well and there those would then be entitled to the first presumption of correctness upon poses i guess i could i would look at it a little differently if they had said that this information i just read   but that was the evidence before them that they relied on coming up with their their decision ok thank you trish kleinfeld you asked about the impeachment of hall i want to read from judge the law has opinions you asked for counsel's failure to properly impeach wall and rash go based upon their drug usage and criminal record this argument is tied into the lack of investigation by mr olson and it's an area of concern for the court the court finds that mr at roles and representation fell below the reasonable standard on this point so judge the law found that that was the case in addition judge hickson page thirteen and fourteen of his district court order he states the following there is a deficiency in the crieff trial phase which led to an incomplete cross examination the statements that were made of b are the following at the evidence or hearing if you consider that a representation by mr vaile or that in fact he was in a position to charge you because of your conduct in april third and fourth yes what was your state of mind as to whether or not you were going to be arrested well he told me that he had already prepared charges and he gave me i guess a copy of three charges i think it was to the indicate to you that they believe that you shot into the body of the deceased yes did you ultimately admit to them that you shot into the body to the police i admitted that i had at any time  a tell you what happened if he didn't get a conviction against tot he did make a statement i believe that was in front of his assistant that in the event he was not able to get a conviction i would be next for his charges ok and this would be for you testified correct yes did you consider that it todd last he was going to charge you well i knew that would be inevitable according to him so your state of mind when you testified was that in the event were acquitted you would be next yes i felt that that what he was telling me was the truth i have no reason to suspect otherwise and then the argument that somehow what the d a says about whether that happened in large part becomes immaterial because it would be hall it would be on the witness stand and i guess the defense would wind up in a really good situation if hall said something and now the prosecutors in the case are calling their own witness a liar so to suggest that somehow there's a conflict between the da and haul paul had nothing to gain by telling the truth at the might like testifying this way at the evidence or hearing we had threatened him we just asked him to tell the truth under oath and he did and unfortunately for evans as a result of mr olson's complete failure to do pretrial interviews of prosecution witnesses he never learned whether or not he should even continue and then you take it to the next step and mr olson didn't talk to him and there can be no question most respectfully or honor that in a murder trial where you have a person on the witness stand testifying and pointing the finger at you that says to a jury you know i'm saying this not because i have a plea agreement not because i'm supposed to tell the truth but i'm saying this because if i don't convict this guy