nasty from the office of the federal public defender on behalf of appellant william clark i would like to reserve five minutes of my time for rebutt i'd like to begin by discussing three issues regarding clarke self representation as penalty retrial first despite being on notice of a wealth of information raising a bona fide out of clark's competence to waive counsel the trial court and knowing as required by law now with respect to the first claim the procedural compensate claimed at the time clark asked to waive counsel the evidence before the trial court was more than sufficient to raise a reasonable doubt at this conference comments i question if you him through that entire proceeding interaction with counsel and the like there was no question in that case whether he was competent to stand trial correct well raised then and not raise now judge took an action that is the same standard that was underpaid which is roberts and his obligation during the entire set of proceedings up to that point so i'm just i'm going to let you go ahead but i'm trying to information before the trial court at the time of the waiver would have raised a reasonable doubt and that information includes the crime itself with which was inextricably related to clark's mental health history either segments of the prior trials or parks previous something it's very striking there's a there's a change here something's going on with these letters let me ask you this as a follow up to judge fisher's question i've been puzzling over the supreme court's goodness case in which the court instruct not whether he was competent to stand trial the question is whether he was competent to make a very specific and single decision was he competent to waive counsel and the fact that he may have been competent to stand trial in the sense of could have assisted the trial doesn't mean he was necessarily competent to make that particular decision i think i understand the court's concern and i'm not sure i have anything in like you say about that when the when the supreme court in time is held that the stammered standard decision the way that's correct i would agree with that and there's a you know the standard talks about rational understanding of the proceedings against him and  rational understanding of his mental condition precludes him from perceiving accurately interpret ing and or responding appropriately to the world around him so i just like to emphasize that getting back to the other evidence before the trial court returned to l a only within a week because he couldn't survive without a stair case in that state many talks about nappy unable to function wishing he were dead waking up in the middle of the night screaming and he was out of touch court was required to keep considering the question and revisit it after accepting the waiver and the court's already mentioned the letters which were certainly trying to go to retrial well that's correct and the judge because as the court mentions the trial lawyer it's not a fact and relay this information that he himself believed that it's come out post conviction that mr clarke was doing this to basically commit suicide had before and before him in any event the medical evidence that you see suggesting says he has personality disorders i mean that's almost sort of self evident from the nature of the crime as you argue but is that to the level is there a few years ago on just that kind of argument where the supreme court struck down dry and hard and my grabbing of the a stay of execution out of arizona where the  arizona prisoner gave up his right of appeal and we thought that there should have been a competency hearing and we were summarily reversed by the supreme court well i the additional evidence expert it's really interaction it's who and that's what makes the situation so significant here it's not just the conditions it's it's his problems his psychiatric problems and how they interact their results both in incompetence and in involuntary waiver and self to allow somebody to waive counsel there are a couple cases i'd like to discuss to really illustrate the problem here and one of the case is actually drove the lead in supreme court case there the defendant was charged with raping his wife which is one of the charges against clark and  the supreme court there was evidence that what the wife testified before trial right before the trial began that the defendant had attacked her and the supreme court held that the failure to hold a compensation hearing there was error and the supreme court's stated for a man whose faith depend in large measure on the indulgence of his wife who would hesitate about pressing the prosecution this hardly could be regarded as rational behavior and i think that really shows what's going on with the letters here g they were rather like this way it was the prosecutor who particularly urged the judge to read the letters now the prosecutor was urging him to read the letters for a slightly different purpose at least as i read that someone as someone ambiguous colloquy i'll just say he wanted me to read the letter so that he could put some sort of control on the letters that could be sent out of prison and so on but i'm trying to tie this into judge n question we have here his lawyer basically not objecting to mr clarke trying to represent himself at the second penalty phase what yeah and i want to say what if i'm not much information that this was an incompetent decision that was being me and didn't bring that's the court's attention and the cases make clear the courts will rely on the trial lawyer to do that and that the court exactly phrase  trial judge had before him is that it seems to come completely out of left field that this forever forever request and so it's really striking in the courts for knowledge that parts mental health history the crime beginning to talk about a fair amount of the evidence that was not in front of the trial judge this to say we're going to talk about correspondence between mr clarke and his lawyer and so on that the judge didn't have and some of that evidence cuts in favor of he should we need to be very clear and i was trying to be clear of what evidence was before the trial court and put that to one side and examine that on the procedural incompetence claim and then i guess what i was falling into was our second plane  where the defendant pled guilty and asked for the death penalty the defendant there later moved for reconsideration saying he had pled guilty because he was deeply depressed because of the prison conditions he'd been in solitary confinement the motion for reconsider was reconsideration w denied and the ninth circuit remanded for hearing so i think that goes to the idea of somebody seeking the death penalty and whether that can be a competent decision is depends on the situation the situation and smith is very much like here with that person conditions having in fact i would the court has mentioned an interest in discussing the instruction claim that i wanted to try to make one quick point there was a lot of briefing on that and i don't mean to repeat it but i really want to focus on a harmless star the california supreme court held that the green star action was required under the prosecution's theory of the case and the california supreme court stated that the jury agreed with the prosecution's theory of the case that the verdicts reflect that in their returning extensive murder far what do i do with the supreme court's holding that the green instruction was not required on the plaintiff's theory of the case and as i read the california supreme court and i analysis because the supreme court says well the jury could've believed the defendant's story and if they could have believed the defendant's story the green attraction didn't apply that you just theory that the two primary courses of conduct that the defendant took neither of which were or was incidental to the other they were both primary and purpose and then went on to say by any stretch of the imagination the arson could not have been interpreted in light of the evidence presented to the court to have been incidental and that ultimately is what clark at the supreme court agrees with saying that there before the defense counsel that there was the risk that in going to the jury he would have to deal with the notion of two independent purposes well i think you know al wasn't established as a came out later so i think i don't think that saves the instruction i think that's more redefinition after the fact so let's assume that the california supreme court gauge seemed to have been at cross purposes for what the ultimate interpretation was in clark what's the legal theory under which we approach prejudice or substantial adverse effect of the we're in the air well if what the california supreme court said is that the verdict show the jury followed the prosecution's theory of the case the prosecution's theory of the case required a crane instruction that wasn't given here so the jury followed the prosecutor's argument and evidence and was required to have the instruction to consider whether this was incidental or not but she clearly was under the prosecution a green instruction but on the prosecution's theory of the evidence that is not a death eligible crime because it took place simultaneously and he burned down the house in order to kill the victims that is to say and we will make sure you have enough time to present your side thank you appreciate your honor with more in your honor i know that the panel probably wants to hear a lot about the green issue i would like to point out one thing regarding the competence issue first fairly quickly one argument that opposing counsel makes is that even if mr clarke met the godinez standard for mental confidence to stand trial and to represent himself he didn't make a voluntary and intelligent waiver of his right to counsel that was an issue that was never in the k b s protection it was never exhausted in state court it was raised for the very first time in opposition to our motion for summary judgment and we pointed out in our reply to the opposition that it was an exhaustive that it was not properly part of the petition and in my most recent supplemental excerpts of record the one that was filed around the time of this motion to expand the record i included at the end that reply that points out where we are arguing that it was not properly before the district court and that is why the district court's order doesn't refer to that claim it furthermore beyond the scope of the certificate of appeal ability but even if that issue were properly before this court it would be absolutely meritless he was given by my count fifteen pages of colloquy between the court and mr clarke to ensure that he understood all of the pitfalls of self representation voluntary intelligent simply requires that he understand and be informed of the right that he is giving up well wait a minute now i'm not and i'm by this question i'm not intending to  one side your argument but not in front of us so what do you say he's heard all this and therefore is necessarily voluntary and intelligent that's not necessarily true because this is not a fact but if someone had said to him i'm going to kill your wife and your daughter and all of all people you love unless you agree to do this the judge says no that's the judge tells him all these things and he says sure i'm happy to represent myself of course not voluntary i would agree that if somebody held a gun to someone's head or figuratively or in the way that you describe is forcing in compelling him then it's not volunteer which is so we can't simply read that it's necessarily voluntary but when the cause and effect that's alleged here becomes more of it related here there's no allegation that somebody forced him to give up his right to counsel that anybody made any threat so on i mean there's these are very different arguments from easily understandable that are thrown printing your loved ones i think is mine to make it clean in this case obviously is much more ambiguous and i know of no authority that says we look into the motivations other than motivations such as you're talking about immediate threats that we look in somebody's motivations somebody is emotional reasons if and if we start looking into those things we risk violating  to the litigation that's going to decide your fate in your life to act as counsel and we won't lightly take that away just because we suspect that your reasons for doing so might be rash impulsive  based on allegations of that sort if you more points i wanted to make about the confidence or in this kind of had more questions about it but judge fletcher you pointed out that there might holding firm to flee that the same standard of competence to stand trial is the standard of competence to represent myself competent to stand trial necessarily involves competence to make all of the decisions that a criminal defendant even when represented sometimes has to make and when we start expanding the ongoing genus and saying that this particular decision requires a different degree of competence or a different degree of understanding then then you never have to decide whether someone is competent to waive counsel if you have decided that he is competent to stand trial well correct but that is the big thing you decided that he is competent to stand trial but competency to stand trial years is irrationally capable of understanding the proceedings can assist counsel is his mind working at that level now there are many various things during trial that he have trouble with but the overall judgment is he's competent to do these things but what if we have only a single question not can you help your lawyer through the course of the trial but a single question and that is is he competent to make the decision to decide to represent himself and wes that is a distinct question from which the answer is not necessarily the same answer as is he competent to stand trial then i never have i not only have the same is an indication by the supreme court that anybody who meets that standard of competence to stand trial the rational understanding it cetera we want to give them the absolute right to represent themselves and are forever provided that it's timely  is a different aspect of it and in that sense you have to take whatever standards you apply want to judging whether someone is competent to stand trial but you have to apply it to the question and the question is and i now competent not only to stand trial but competent to represent myself it's the same degree of the same factors go into the evaluation but i would resist the notion and i certainly wasn't suggesting the blindly questioning earlier is foreshadowed or for ordained i should say that if you've been confident to stand trial of you automatically are confident then sell for a present that's a big difference but in terms of what the judge wants seems to me the judge can and i may be wrong in this but my least the judge can consider the fact that all throughout the proceeding and this was a long pursued in that there was nothing that i believe it's the odal case from the ninth circuit that health and a college is if i don't have this exactly but i believe in that case there is authority that you can look and see if you can reconstruct co standard shouldn't apply to any particular he'd just claim other than one that would constitute a structural error and in this case we have evidence that's which as judge fletcher pointed out were not before the trial judge but are before us now the numerous letters that he wrote to his trial counsel analyzing the way the case should be handled cetera we also that evidence that was before the trial judge the transcripts or the actually seeing him live in through nine days of trial testimony of first trial and his demeanor in the courtroom so chris this purpose i don't mean to disrupt your line of argument but for this purpose just in terms of before the court do you include as before the confidence and to the good in this standard he's arguably manipulating the system but he understands that system that he's manipulating and he refers in those letters to the status of the case the fact that there was a hung jury the last time that he attributed to incompetence of the prosecutor that the decision now that's going to be made is whether to retry him but don't worry he doesn't believe that that that's going to happen and if he does that the prosecutor will win and he knows that the consequence is that he would get a actually to make of all of those letters how they're relevant to anything that's within the significant local ability there certainly relevant to the ineffective assistance of counsel point because these things were known to the trial lawyers at the time that under the controlling legal standards creating relief in this case to be quite can of it i have to say in reading green and circulation careful articulation of what the person in special circumstance was drawing specifically the supreme court decisions to limit your discretion and then jumping ahead to clarke where as dr drew i think has a reasonable understanding of the criminal process i'm having a little trouble understanding instructed what what they did it is the first very close of the instruction which seems rather open ended and yet and so then the supreme court says well yes it has to be limited but then it's wife for reasons that had nothing to do with robbery or larceny but in the process of murdering her stole all of her clothing and belongings and destroyed them he didn't want them you just want to destroy them and the reason he did that was simply to cover up the crime court the state supreme court in green was concerned with the eighth amendment narrowing function and that is the reason for the green rule they stated this yes this is a robbery there was the challenge to the sufficien evidence of just robbery and they grudgingly said yes technically you used force we took something it's robbery but only by the most slightest of technicalities is this robbery there's clearly no driving purpose to steal anything here and if we were to interpret a robbery special circumstance and it's significant that it's not an earth and special circumstance to include this into bootstrap this barely a robbery into a capital on the green wall before the crime took place in this case green and thompson and both of those were robberies tranced and again there was just a very incidental taking i believe it was i believe it was a set of car keys and he was only trying to make things seem to the victims like they were being robbed when they weren't and just immediately discarded the car keys after killing them in all of those what the green held is that when somebody happens to engage in ancillary conduct that technically constitutes robbery and we don't think that we don't want the special circumstance to apply for it the moment narrowing reasons the only case that happened the only other green case that happened between the crime being committed here and the trial was the robertson case and there interesting enough we have the beginnings of a concurrent objectives idea the defendant rates the two victims murdered them and also stole their panties and i started to refer to visitors but for the quote underwear case just remember this is a short one but he had a collection of of women's underwear in his room and there is a finding that apart from his desire to kill the victims apart from his is desired rape victims he also had a very separate independent intent to obtain the panties for whatever reasons that he had  murder that is or a robbery that is committed to facilities are merely to facilitate the murder and we don't have in green is an absolute rule that in any felony if you merely commit fifty excuse me that that the murder absolutely must be perpetrated for the sole purpose of facilitating the commission of the other felony that case like in green it was the thought which was the add on and i think the real intent of green and and the whole evolution of this rule is to avoid the add on ancillary felonies and but the way the rule is articulated doesn't have a temporal sequence that is to say the robbery could have taken place beforehand as indeed i think it did in roberson that is to say he took the clothing away and beforehand but it was not a robbery to procrastinate a special circumstance because it was the because it was the it was independent what i'm after here is the green language that says and i'm just reading from green  or facilitate in that i am setting fires which i don't intend to kill anybody in order to drive the occupants out of the house which by the way then he wants to do a number of things he wants to humiliate a garage inflict the greatest amount of emotional distress you possibly can in his calculations and kill david that also in that leap of language that you're discussing between green in france and and roberts then the word intent to steal is there and that that every case in those early days of the green world was a robbery and robbery is a unique crime perhaps kidnapping would fall in the category to the robbery in virtually every murder the perpetrator wants to cover up his crime in some way and wants evade capture and when doing so just happens to involve removing something from the victim technically you've got a robbery and robbery you have to be specially careful that robbery is not going to be something that ancillary merits of merely technical and keeping in mind i think that what the court the supreme court did in clark is consistent with the whole purpose of the green wall from the beginning is that we're not talking about these things calories we're talking about house in order to help them but the court itself tells us the green does apply if you set the fire to kill them the only difference is when court is telling us is that well it took one more step and he wanted to drive them out of the house and that one doesn't  to be to be a little bit that's basically true if that to be a little bit more precise if it was to set the fire for the purposes of killing all of the occupants there wouldn't be a jury question in the that the jury could still find concurrence independent theory that he set the fire to kill all of the occupants you would have a travel issue on it i mean what do you mean a travel issues i understand what the supreme court said and clark when asked if he set the fire in order to kill all the occupants that is not a special circumstance and for that purpose alone but the well i have and i think that and i think they're telling us that on the prosecution's description of the case that qualifies under their view of what smartest person and if i have no other reason i mean these are not the facts and i'm only mentioning them hypothetically but suppose that he decided he wanted to leave abel duran's he destitute he wanted to hear survive the fire but her house to be completely destroyed and that that in addition to killing david by fire i don't think the supreme court would have ruled out something like that and i'll grant you that those weren't the facts of this case but in this particular case the facts were that mr clark decided he wanted to kill david grant's he had that planned for a long time there were several possible ways to kill him there are a lot easier ways to kill him then killing him by arson by setting his house on fire but he calculated i don't want to just kill jury necessarily found it to be the way mr clarke testified and the reason we know that is the second degree attempted murder verdict had the jury believe that his intent in going the making all those plans getting the gasoline and setting the fires in those back rooms that's to trap everyone inside from the start and burn them all to death that would have to have found first degree attempted murder on the other counts for the other two occupants of the house there would be no other way under the instructions that they were given the first degree murder in the first degree attempted murder instructions when they found that look i have to say i've got two problems with that number one inferring from attempted second degree  er what the jury must have thought is always difficult because there are various compromises and so on so why can't we know as judge nelson and i particularly now from an earlier case we were involved in california later  decided that the very concept of second degree murder was incoherent and that there are only only possible kind of attempted murder you could have is attempted first degree her and i know you're familiar with that lack of any cases but there is no such thing any the prosecution can allege in the jury can find or not find an additional allegation that it was premeditated willful and deliberate if they find that finding is true then there is one range of sentences if they don't make a finding of the prosecution  that finding them there's a different smaller range of sentences that's what we have now instead of first degree and second degree attempted murder here but you're familiar with the line of cases in which the california supreme court decided that there was no such thing under california law as a compass check in degree murder i'm not familiar that it said that what i familiar with though however is that california law says you cannot have attempted murder based on implied malice attempted murder has to be specific intent to kill complete to kill and second degree murder and this is significant because what the defendant testified was his plan was to was to set the fires to drive the occupants out once he threw the gas that's what the supreme court when about how the prosecution argued and the jury believed that jury believed by the way rehearsed only to that that there was an intent to kill the other occupants how quickly that was a that the grand scheme bedroom was occupied and that's before he flew through the flare again and his resolution to proceed with this plan and then the last does not negate the evidence that he had a purpose independent of causing the death of david now what i read that to say is that the fact that burned and they're alive and no one is going to run out but nevertheless i must continue with my plan even though i know this is what's going to happen and he goes ahead and throws the flaring that would be consistent with second degree attempted murder or nowadays attempted murder in any event the history of the green well and the interpretations and whether it's whether what the california supreme court held here was consistent with the prior rulings wouldn't come into play until i'm assuming that the court is trying he claim is a very very high threshold for a petitioner to make and just in the examples of the cases that i gave you in the briefing there's one more ignition all case the supreme court case out of tennessee and i don't know why the name  but could perhaps give you a twenty three letter but that was the case where the tennessee supreme court on a direct appeal of the conviction threw out a centuries old common law rule that year and one day will that says that a victim must die within a year and the day of the a constituting the murder in order for it to be murder suddenly threw that out on this one defendant's appeal and found him guilty when his defense had been based on that and that did not that was not considered such an unprecedented and indefensible supreme court this u s supreme court which had taken it on this very clear look at the tennessee supreme court is the one that had adopted that new rule in the current case there's also some question as to whether we applies simply to making a crime a capital crime versus the non capital crime and certainly even when it does we refers to your notice to your notice that your conduct just criminal at the time that you committed that and there can be no question of the evidence here  there was a question for the panel about the fact that this is going back to the competency claim that those letters that were written for by mr clarke to even grandstand father were offered to were offered by the prosecutor not by the defense at the and apart from that if there are any man can you explain one more time why there is an ex post facto violation here technically i know i use the term ex post facto in my briefs and i used it unadvisedly apologist technically it would and my argument is that looking at the genesis of the green wall which is a very new rule at the time that the crime was committed here and had never been applied the on the unique circumstances of robbery which is not to say it doesn't apply to arson but how it applies to arson exactly it is something that hadn't been developed it was simply an area of law that perhaps had open questions to it but i don't think that anything at that point  california supreme court decided it simply can't it simply has to be within the realm of reason that it could be and one case that and i'm glad you asked me this question because it's mind me one case that is informative on that is people versus a murder shot which was decided the case but when deciding the scope of the felony murder rule and murder shot the case that the california supreme court analyzed and distinguished was green and with that begs the question of wasn't it at least within reason within within the realm of reasonable for the ability that green could be interpreted in this particular way when in a case involving the felony murder statute the california supreme court looked to green and  competency and valid waiver so i think it's always part of that analysis and in this emission the attorney general cemented to this court saying that the waiver claim wasn't properly here and then  some stuff from the district court to show that he had objected to so that if you look at the submission it was actually only responding to two very small parts of the waiver claim and claiming that they weren't properly late raised one wa warnings about the general pitfalls self representation and didn't go far enough so that is all before the court in the in the motion to expand the coa we did discuss waiver we discussed waiver in bold print heading discussed that so it's always been part of the case and i think that argument is not well taken kelley also mentioned it stated that he didn't think there's any need to look into the defendant's internal thinking  remember we talk about competence to stand trial there was never a ruling here that clarke was confident the stand trial i mean you can look at the evidence before the court one way or the other on how that cuts what's important emphasized there was never a ruling there was discussion about the letters to mr grant skinner father being properly before the court and in deciding whether there was a waiver and i just want to make clear that i think as i mentioned because of the duty of compe inferring what the jury must have done about the second degree attempted murder convictions and what they must mean and i think the court was right to point out that that's not the way the california supreme court looked at it and and and rightfully so when the other thing is the fact that the second second degree attempted murder came back doesn't mean the arson still wasn't to facilitate the murder and the primary goal still wasn't murder case and when you look at the green analysis it's still the same and the evidence was as a defense at least from the defense view that he set the fire soley to facilitate the murder and the language of green and the primary