good morning my name is john lambert as i'm here for it tell it mr de marlo very i'm i would like to reserve about three or four minutes of time for court a fair statement of the question would be whether or not the advice that was given to the marla very to waive his right to a unanimous jury under state law was the product of ineffective assistance of coun and whether ultimately mr barry's waiver while the jury excuse me after about twenty five hours of deliberation by the jury was in fact  citing boykin johnson and johnson versus surfaced and several united states supreme court cases on the issue of whether or not a constitutional statutory that included united states supreme court cases on this point johnston boy can those cases those cases and in the case that i did two cases that i'm that i would principally point out to this court is the mackay  from maryland and i believe the taylor case out of wyoming both of those cases if you review those cases carefully found that the waivers in those particular cases and those for particular prosecutions were invalid in the wyoming case they found the waiver mistrial means that you would get a new trial with a new jury of twelve persons under nevada law that would require unanimity on each and every element of the offense for each and every count this was robbery burglary in my case it was robbery burglary and felony murder with the use of a deadly weapon and that you would be the jury would be instructed that you are presumed innocent that did not happen if you look at the record in this case that simply did not happen nevada supreme court's conclusion to the contrary with all due respect to the court was wrong as a matter of ed cola it was contrary to and an unreasonable athlon cation of the united states constitution as interpreted by the united states addressed in my briefing with regard to the non certified climbs our office was appointed by this court on direct appeal and quite frankly again with all due respect to the trial court below there should have been a point of counsel because i think that the the case would have been much more underhill versus lockhart by counsel council's decision was in effect excuse me counsel's advice was deficient and we are also arguing and this was reviewed by the nevada supreme court it was litigated report this proposed agreement between the state and the defense well what we knew because there was never have an in evidence rehearing on this case the lawyers never testified the defendant ever got a chance mr barry never got a chance to testify we knew that this was a strictly eyewitness case five eyewitnesses the jury after all those twelve and a half hours of deliberation wanted to read back of all of the eyewitnesses no forensic evidence linking this or very to this at the time i think that's a factor that weighs in favor of a jury not finding death quite frankly the only aggravator the only aggravator the think that the state of nevada reported in support of the narrowing function to make this a death case was th the murder was committed in the course of the robbery in other words the felony robbery felony murder robbery which sense ironically into that it has been found to be unconstitutional in other words if you're proceeding under a theory of felony murder you cannot use the robbery to enhance them to enhance as an aggravator to find death there was a racially charged trial during jury selection i believe the first day of trial there was a bomb threat with an eye with a racial epithet connected to the bra bomb threat connected to my client prior to that prior to the decision that was presented to judge mop and it was a note from from the judge from the holdout juror i think it was a note that somehow nevertheless the record that was in that in chambers conference was never transcribed so what you have here is advice and in my opinion given the state of the record advice to concede guil in exchange for not exposing oneself to the death to the death penalty now superficially that seems again superficially and i believe i'm not meaning to suggest that i'm  superficially that seems like a good idea but when you when you weigh all the when you take all of these other factors into consideration i submit to this court that it was inclination to understand that it was probably eleven the one for guilt yes but they didn't know they did not know that it is i and i and i'm not going to stand up here and say that the point the things you point out the the weaknesses in the case the eyewitness testimony and so forth was before the jury yes one thing that one thing that he certainly would have known again and we don't know this because there wasn't there it wasn't the kind of evidentiary hearing that was conducted in the eleventh circuit sanchez case where all of the lawyers and defendants testified as to the benefits of the bargain we certainly do know one compelling thing and that is that the next jury that would sit in judgment of mr barry would hopefully not about this judge on a convoy i really think and again having done some death penalty working for the last twenty five years and of that and it's a great deal to get the death penalty taken off the table and i'm not going to sit up there and say that it's not under these circumstances because quite frankly and again now we now we need to speculate but with this court's indulgence i will i think if the mistrial had been declared a new trial granted the first thing i would have done is interviewed all twelve of those jurors to discuss exactly where they were coming from and quite frankly again speculation to twelve really previous to the previous twelve the twelve that hung the eleven to one and you know you're always in and i think as a defense attorney you're always in a much better position after one hung jury because you can sit down and talk turkey with the district attorney if they don't want to try the case again they might have put you know you know we'll put life with or without on the table now let's just don't go through this again so that's why i say the deal was a looser e why not deal or we can roll the dice but there may be some outs for us before we have to get to the end of that road right so i think it's hard under the strickland standard to figure out why taking contrary to strickland and an unreasonable application of strickland to speculate because this should have been fleshed out of the never natural hearing this really should have been but and quite frankly at the very least i'm hoping that that's what this court will do if we if we don't win outright and get a conditional granted but having having said that in response to your question i think that again under these circumstances any reasonable defense attorney that does death penalty work would have assume that off the table that you might be guaranteeing your client a sentence of life without and we don't know exactly how this was pitched to mr berry we don't know if it was pitched you know what i think it's eleven to one acquittal or you know what i think it's eleven to one guilt in terms of bringing papers and i think he did that in his conviction petition i think he said that you know this this i didn't understand that a hung jury was like a victory a hung jury meant and i go back and get a retrial which really is a perfect segue to talk about where this where you know the cool one of the essentially critical problems in this case is the can be decided on the records that as it stands without any need for any and any additional fact finding and that is the fact that the waiver canvass the on the record waiver can this did not satisfy johnson versus service and boy can versus alabama that clearly did not and the reason that it did not was mr berry did was never told that in exchange for the state's decision to not pursue death you would give up your right to a new trial with twelve jurors who would have to find unanimously beyond a reasonable doubt each you know each and every element of the offense and you would be cloaked with the told that by his lawyer so we don't even have that and i wouldn't concede that that would be good enough under under johnson and and blake one thing that interests me you are saying that  should i give a death under the circle i should i why should i accept this deal under these circumstances given given this case when i have a guaranteed new trial if i just if i just decide to go ahead and have a hung jury here  time having them already on the record both in a preliminary hearing and not all of them testified at the prelim so this was the first time for a couple of those eyewitnesses that counsel got a chance to really take their measure  undergoing a trial by jury i would suspect if we look at the instructions that were given by the court there was a reference to reasonable doubt salt how can we assume that the defendant was not aware of these things when he was sitting there waiting for a twelve person jury to come back with a verdict right with a reasonable doubt instruction in his favor yes and my reliance on boykin is somewhat well it's it's it's like a have to have an on the record valid constitutional waiver you had to be there has to be a record somewhere that everybody satisfied that the defendant knows what he or she is giving up in exchange for the benefit well the determination of factual basis was for the barry's trial counsel that it seems like there is a plan to inject a couple of its other issues into the case one being that the trial court's canvas of mr barry's waiver was somehow deficient another being a sufficiency of the evidence contrary to right on recently application of clearly established federal authority i was going to talk more about the johnson an awful kata cases but i feel like we've heard here today the counsel's conceding that those establish that a state court criminal defendant does not have a took a look at what other jurisdictions have done as well not just the united states supreme court but they looked at the circuit court decisions as well as other state court decisions and the maryland case was particularly useful simply because in that case there was no expressed language authorizing a waiver of  mysterians state court and yet that court determined that it was possible to do so applying those factors in the bed of supreme court determine that indeed if the waiver is knowing involuntary it can be made and that's exactly what they really did in this case their mate was not a good did he show prejudice arising from it in this particular case he obtained a clear tactical advantage which is that the state agreed to drop the death penalty if he would take this not unanimous jury you know we've we've heard the discussion that that was a loser ian but that's simply not true whether  there's the argument to how strong the death penalty case was the fact remains that at the time this decision was made the jury was still deliberating death was still on the table and it was going to be on the table if there was a mistrial and a subsequent retrial how likely was it that he would be here he is the reasonable us his decision of course and i would comment that we do now have vision that at the time eleven jurors were voting guilty one this voted not guilty so the argument that well the defense could have been if you know that so the trial court yeah in this very space well look what he did was robby carl's jr and murdered somebody during the commencement of that crime with how the reasons for the state seeking the death penalty and you know we heard about them from counsel and we don't have the complete trial court record here before us today but we do know that a robbery was committed we do know that he used a deadly weapon during it and he was facing the death penalty as a result of that i can't stand here today and well just counsel had actually done something objective leon reasonable not very actually would have done something differently had he been better informed instead what we have is a situation where he's never actually identified what it is that trial counsel did wrong he says he's mad about the advice that he received of course but i not get a new trial with the likelihood that there would be a lesser convictions well the problem is that there never was going to be a lesser conviction i suppose he could have been acquitted and we'll never know that but out of the options that he faced you know the death penalty was obviously the most extreme but for a conviction for murder such as he was convicted of the other options were life with the possibility of parole and life without the possibility parole out of those he received the least of those three life with the possibility of parole so to be able to go back and speculate is equal obviously an acquittal is possible however we've you know we've never heard that he's he's never suggested that he actually did not commit this crime is never alleged prejudice in terms of well if i had been better advised i want to take this deal because i could have been be back in the day you know you have this sort of articulation of all those things if that was his strategy to advise him to take to take the deal but we don't really have a record of that when we have some of that i mean included in the record  mean we all we finally got through the point which you brought up right at first we got through but much of the briefing was focused on this is a constitutional or not but we that was an easy question it definitely is constitutional and the lawyer was well within the law  to make a recommendation the question is whether the recommendation was reasonable and i would suggest that under strickland the presumption is going to be the trial counsel was adding active acting adequately that they were performing a reasonable competent job he had coun during the trial she sat through the whole time presumably made objections weigh the evidence was able to evaluate it as the trial on folded and at the conclusion of that as the jury is deliberating she makes the decision that look you know if she if she had been on the record discussion with barry we can only assume that explained look here's the deal that we might build a make it's going to save you from the death penalty obviously there's a chance that you could be acquitted and even at the time the deal was made that chance still exist and this was so much better than a deal where he simply agreed to plead guilty because there was that chance no matter at this point that the jury would have come back eleven in favor of acquittal and he would have simply gone free we can only assume that all this was presented through and it was presented in op court with him on the record the trial court can understand he said he understood that the trial court made the comment that i'm prepared to declare a mistrial that there would be a new trial in this case and he said he wanted to get it over with so at this point in time i don't think it's appropriate under strickland to go back and try to second guess those things in fact the whole case is a textbook why we don't go second guessing trial counsel's activities so long after all along as we know what happened in the and maybe there's some more in the record that i'm missing as you're more than briefed about what happened at that then apparently goes in the back and we know later from comments he apparently made to a jailhouse snitch type person that what took place was that he had somebody to kneel down and basically shot him in the back which resulted in the person my understanding that's correct there was at least the one lady inside of the place who then proceeded to leave and make an identification we also have a series of people outside of the building who see him with a gun in fact i believe they're even threatening at least one group of them with weapons so in addition to the eye witnesses i presume for that testimony to come in that he would have that testified rackley so i guess we're to the point where we're winding down here and again this being a strickland case the nevada supreme court applied that applied strickland took a look at all of these issues that we're considering here today and the term the trial council was functioning adequately the district court agreed with that analysis essentially the district court did something in a little bit in addition  least in a footnote to go ahead and address the problem the various never never once alleged prejudice in any of its petitions whether in state court or federal district court the district court went on to evaluate that well not only if that was a fatalist claim under strickland it being a mandatory element of the analysis but that the evidence that we do have from the trial courts canvass indicates a very did want to get it over with that even if he had been advised that for whatever reason this wasn't a good deal it sounded like from the evidence we have that he would have wanted to proceed anyway most court as any other questions i think that's about it thank you thank what is your response to a situation that's presented here well you're absolutely right that whether or not mr barry is entitle to an evidentiary hearing under the under ed i believe is driven by whether or not he had an opportunity earlier or he made an attempt or he made a diligent effort to just to pursued that fact of the elephant in state court he did have counsel in state court and i cannot tell you why it was that it was the conviction counsel did not do were made a part of the record below that was it was that type of a next after a murder it was it was an execution type murder which which really is a bad fact there's no question about it which would make it more reasonable than what really needs to be emphasized here and and i kind of heard my pose of counsel say one thing and then say another thing and sensually the waiver issue is it was litigated in the state court it was litigated in the ok well that's that's the gravel none of of my point with regard to what does not need record development and i would urge this court to look at to two pages of my excerpts of my three volumes of excerpts the first pages that  five fifty nine when defense counsel tells the judge and what it is she and her co counsel had done with regarding with regard to telling mr barry to take this decision nothing in there about what would what would what is required under the constitution and then to take a look at pages five sixty two and five sixty three when the trial court quote unquote canvass mr barry on his on whether or not the