all right thank you both that was very helpful next we have reichman versus florida department of corrections and the attorney general of the state of florida good morning may please the court my name is janice bergman i represent her reisman who is the petition in the district court in the appellant before this court today my arguments are going to focus on my st claim the ineffective assistance of counsel claim with respect to mr reisman guilt phase he was granted relief in the state courts  with respect to penalty where the floor supreme court found that mr reisman struggle counsel had been ineffective by failing to investigate and present the testimony of numerous witnesses in germany mr reisman was a german national charged here and had provided counsel with a list of the names of numerous witnesses to be investigated in germany in addition counsel had a list of witnesses that the state  had asked german police to investigate all in all it was dozens of names of potential witnesses for mr rush since trial none of whom counsel even bother to call by telephone to ask questions  of but of course before we get to the end effect of his claim because the controls here i'm going to st direct my arguments to whether or not deference is warranted under and with respect to both prongs of an unreasonable determination the facts in light of the evidence before the state court specifically with respect to the deficient performance prong the florida supreme court's factual finding was based on  a misunderstanding of the state court record the florida supreme court considered that the end of the deficient performance prong was based entirely on the failure of counsel to investigate the names of the witnesses t the florida supreme court found the council's performance was not deficient because he couldn't be found efficient for failing family or failing excuse me to investigate witnesses on a list not provided to him or the list was clearly provided to him  state court record of the evidence you're hearing is clear that that list was actually in trial counsel's files there were two lists of relevant witnesses here both of them actually were in trial counsel's files and the state court record is clear that he failed to interview witnesses on either list and for that reason no deference should be afforded the state courts determination as to deficient performance and with respect to reviewing the merits of that ponta novo i mean the state doesn't dispute the council's failure to investigate any of these witnesses was deficient and i won't spend a lot of time on this argument but as i said it's clear that counsel had the name of of numerous witnesses and failed to make any effort to investigate contact any of them and had no explanation for his failure that the state court found no tactical or strategic basis for counsel's failure to investigate and unless the court has and questions on move on to the prejudice with respect to the prejudice prong there's presented at trial in that it concerned evidence that was already admitted to trial only presented in a different manner and then the state court the florida supreme court gave an example that counsel had secured testimony from the state's witnesses regarding mr love for the victim is kish nick in that the jury was also presented a videotape that showed their loving relationship and here i would this florida supreme court decision in this regard is is clearly misconstrues the record i've got a specific question was there any evidence actually submitted in the trial that the victim wished to continue being a there was evidence that the state presented i'm sorry i'm sorry your honor actually i was thinking the flip side there was evidence at the state of any jury hearing yes the testimony of one of the witnesses that was presented for mr right by post conviction counsel her name was all rika carped carpet check and she testified at the evidence you're hearing that she knew for a fact that the victim had no desire to quit being a prostitute and i appreciate your honor pointing this fact because this is actually a critical deficiency focused on but there were two other important things that the state needed to prove with respect to motive and one of those was that mr rushton lived off of the victim but also it was critical was the argument that she wanted to quit prostitution and that he had murdered her for this reason and so there was absolutely no evidence presented at trial through cross examine if the state witnesses or through the state witnesses witnesses themselves that she wanted it she did not want to quit being a prostitute but at the state evidentiary hearing the testimony of carpet chick she testified that she knew for a fact that she did not want to quit and so that's a critical difference between the state court trial record and the evidence that could have been  trial had defense counsel only investigated and spoken with these witnesses and the same thing is true with respect to the the differences in the record about the the financial situation right there because so you're saying the truck the jury should have her that she wanted to keep being a prostitute that's correct your honor i mean the fact that she wanted to quit ok to show one that kind of cut against he was saying i didn't need her to be a prostitute i was financially independent so why if he if his whole defense and major his major defense was i was financially independent right that yes that was and we have a good  yes your honor so if he's financially independent i thought he was saying it didn't matter whether she wanted to be a prostitute or not but maybe i'm misunderstanding his i'm time at his own testimony at trial i thought he said i'm financially independent and i didn't care whether the she was a prostitute or not well that's correct your honor but also it might be the next argument i was going to be making was that the evidence at trial also rebut other than mr rush wants testimony also failed to rebut the state's evidence that he was financially dependent on the victim and so these additional witnesses that again these witnesses the trial counsel failed to investigate also were presented evidence to demonstrate that he was indeed a successful businessman that he was financially independent i understand he had some more evidence about his financial situation but you were talking about this miss c saying she knew the victim wanted to be a prostitute is the key witness that shouldn't have been there and i don't know why her testimony would have mattered well because your honor because because i think this i'm financially dependent didn't matter to me but this was the key thrust of the state's case your honor was that that the that he was financially dependent on her and that she wanted to quit prostitution and honestly through the cross examination of the defendant it was not entirely clear that being the evidence with respect to his family financial independence from the victim would certainly not was not as strong as it would have been had trial counsel investigated these witnesses and presented testimony to support his own to help me with this and you may be right we need to review all of this on the i c i think you're right on the deficient performance for sure that they messed that up in i've got a look back at the prejudiced part that even did i see prejudice to me the overwhelming evidence of motive was the life insurance policies ok and that's often the case in these type of situations here and to me there was so much motive these life insurance policies not only in quantity but in amount and the rental car policy and all of that and his maybe atlee making claims on the policies that to me all of this other stuff was noise so help me  under a president's analysis on the motive issue because all this other stuff was just all motive right yes your honor all of it while was there not overwhelming evidence of motive and all of this just noise well your honor  perspective on this is my husband has a one million dollar life insurance policy on me and no one would consider that to be a motive if there wasn't a reason for our relationship to a broken down or there were financial reasons for him to want to claim that money with respect to ensure you know with respect because he needed the money for some reason and so i think the insurance policies alone do not provide a motive the motive has to because we're going to six policies here right yes your honor ok and  last year he our two years he had taken out two more on her he bought on her yes your honor i have to have close with those to the murder last i don't honestly remember your own i think they were within a year but i'm not entirely sure but but your honor but she also had numerous policies with respect to him and they had been in a relationship for thirteen years again i think the insurance policies don't provide a motive without also the additional evidence of a deterioration in their relationship and also a deter deterioration in his financial standing and without the witness there was nothing to rebut the state's evidence with respect to the financial information that the state put on there was nothing to  rebut the evidence the state's evidence that she wanted to quit prostitution and there was very little to rebut the state's evidence that their relationship had deteriorated that he was cruel to her that he was disparaging of her and through these numerous witnesses that counsel didn't even bother to go to place a telephone call that i think it would have altered the i'm going to simulate it analysis there were four witnesses at trial they had the videotape of them the day before in a loving relationship yes your honor and then there were four our friend witnesses i think are maybe i'm wrong the four german witnesses were called by the state your honor ok but they testif they had a good relationship well are at least to some extent that they the only person the only two who focused on the the actual relationship between the mr reisman in the victim mohler who had known the victim for three months and had never met mr reisman and then the victim's sister and both of those said both of those witnesses will miss mahler's testified that loved mr rushton and that mr reisman didn't love her in the same way with respect to the actual relationship who was the of the two witnesses german witness the other two german witnesses was a man named peter meyer and i'm going to pronounce his name wrong expert but i'm sorry a blood spatter expert but there was not there was no one who testified regarding the relationship either the personal aspects of it the financial aspects of it or any testimony about whether or not the victim wanted to quit prostitution i'm well over my time if the panel has any additional questions i'll wait for about all i actually do let you keep out of your time there's been some discussion about whether there whether and to what extent all of this evidence would have been admissible yes your honor the state argued that that this evidence wouldn't have been admissible because it was character evidence i would argue as i as i did in my reply brief that this was not character evidence this was impeachment evidence it tended to prove or disprove mr reitman's motive for murder motive is a material fact under florida law and you can present as impeachment under florida law evidence that would demonstrate that mr rush means motive was not as testified to by the state's witnesses and so here the state's i mean the state's theory of the case was that he murdered her because he no longer loved her she wanted to quit being a prostitute and he needed the money and so all of these witnesses would have gone to those three it's more about whether they would have been here say not a matter of problem and see whether the witnesses who had seen him in years had in personal knowledge of his finances or their current relationship and her desire to do prostitution or not i think that was more of the well i think this ability certainly had a it all could have come in it in mitigation and penalty case that's already been decided but this how would it have come in to show motive when they hadn't seen them in years and had no testimony i would point out with respect to to limited knowledge miss miller had only known the victim for three months out of the thirteen years of their relationship the last three months and she had never met mr rush when she had spoken to him on the phone that they were sharing an apartment together for purposes of the prostitution in the last three months before her death yes she's got personal knowledge from mr mr my iraq had not seen them in three years and had only a limited relationship with and that evidence was but then admitted with us but did you object to his testimony to the trial counsel object when he tried to test you and i don't know if you've checked in on the specific grounds but i do know the trial counsel voiced a multitude of objections throughout the course of the trial and may well have done that with respect to he was constantly asking the witnesses for specificity with spec to time frames and periods of time throughout the trial i would also say that many of these witnesses had quite i mean there's so many witnesses i don't know if there's any in any in particular that the court was concerned with but many of these witnesses had quite extensive relationships with both mr raymond had conducted business transactions with him and various other  ineffectiveness claim when they were presented at the penalty phase judge roll gold expressly at the evident hearing before judge golden state court expressively stated he was not being asked to quote determine whether or not this material should be admitted for purposes of penalty phase he says my understanding is that i am being asked to determine whether or not there was ineffective representation by counsel by not investigating these potential statements and that these witnesses could have been available to put into evidence at trial and that is in the state's appendix volume at page nine of volume two page nine and so when judge gold suspects and he said i'm sorry he went on to say i should put them into evidence to show that these statements are persons that could have made such statements at the time of trial of counsel it sought them out that's what chilled judge gold admitted them for and that's how he considered them  only recommended the grant of penalty phase relief but these claims overlap and the allegations in the petition incorporated and relied on each other and so i think that these statements were with respect to both penalty phase and guilt phase at the state court level thank you and you've reserved your five minutes the court richard poland this is an attorney general for the state of florida on behalf of the aptly the army of corrections turning to the question of deference on the in effect of assistance claim and whether it should exist court to issue a written decision and we're talking about deference to the florida supreme court which entails both what the florida supreme court wrote and what was argued in the brief in the florida supreme court and when you take a careful look at the briefs of appellant in the florida supreme court as far as what was as far as what was argued as for example as opposed to this alleged misunderstanding about the list of the thirty seven witnesses from the from the german detectives or the handwritten list of a dozen names that mr richmond provided to defense counsel it is the appellant's brief that repeatedly mixes up these two concepts and in the ineffective assistance of counsel claim it keeps referring to the list of the thirty seven dollars names of thirty seven witness statements and that's what the florida supreme court was  was responding to it was because richmond in his capacity as appellant was bringing this up and mixing and matching the two claims it wasn't a misunderstanding on the part of the florida supreme court it was a direct response to what reese mn was arguing as far as the as far as the factual matter about focusing on the relationship th the loving relationship between the two as opposed to zero ng in on the alleged financial independence of mr recent such that he didn't need to live off of the victim's earnings again look at the florida supreme court brief of appellant look at the statement of the case and facts where this issue where it was where some of this is referenced and then go to the argument portion that corresponds to it and in all of that you're just going to find one passing very fleeting nonspecific reference to anything of a financial nature the manner in which presented this claim in the florida supreme court was focusing in its entirety on the loving relationship and that's why the florida supreme court is characterizing it as that and yes there is additional information in the three dollars motion that was presented in the trial court but the question is not deference to what occurred in the trial court it's deference to what the florida supreme court did and how this was presented to the florida supreme court as the case works its way up from the trial court to the florida supreme court the issues get narrowed the focus gets narrower and it's not incumbent upon the justices of the florida supreme court to go through every single sentence of every single page in the trial court pleadings post conviction pleadings to determine what else is there that the defendant appellant has not presented that perhaps we should look at an entertainer on our own and develop  the claims on our own so with that in mind when you look at the look at the questions of deference by looking not just at what the florida supreme court wrote in its opinion but what argued in his brief in that court the florida the florist state supreme court's decision is intitled to to deference similarly as far as  viewing the evidence as cumulative as a factual matter and again the focus there too in the florida supreme court was on the loving relationship not on the finances well dina mohler also said some negative things about about mr richmond when you when you look at these various witness statements  that we relied on or the testimony that was provided from these witnesses at the evidentiary hearing they were and they weren't giving mr richmond a complete clean bill of health either they interjected a significant amount of minimizing or some negative things as as well you're saying that the the witnesses that mr reisman is is putting forward also had  any that they all the german witnesses all pretty much said they couldn't believe that he would have done this and a substantial number of them talked about the loving loving relationship but  there were things that they qualified it that they didn't really know him all that that that well and they didn't know much about his finances in referring to some of the financial matters that were things that  on the one hand they would say that he seemed to have financial interests and business interests but then you read closer between the lines in these witness statements and affidavits and you see things like well i heard this  secondhand or i referred him to some saudi business people but then i never heard anything further of it so what does that mean so it's more it's more that there are reasons to question the thoroughness of their knowledge than it was  they actually said negative things if i'm understanding you correctly yeah i would say that that's a fair characterization of it so turning to a couple more of the specific steffen st this is the statement in question the affidavit in question that was being referred to my recollection of it understanding of it is that it was one that was obtained  defense counsel in preparation for the three point eight five hearing in the nineteen mid one thousand nine hundred and ninety s not it's not one of the original german witness statements that they were talking about it at that point in time but what happened at the have an insurer hearing is that on the st day of the evidence every hearing the defense presented about seven german witnesses as in court witnesses whose testimony to some extent mirrored their witness statements and they were all subjected to cross examination by the state on the rd day of the evidentiary hearing at the end of the hearing volume three between pages two hundred and five and two hundred and twenty five of that volume what happens is defense counsel tells the judge now we'd like to introduce about another half dozen affidavits witness statements without presenting these german witnesses in court so they weren't going to be subject to cross examination by the state and defense counsel explained the rationale for that the rationale was that judge what we're going to hear from these witness statements from the affidavits it is materials that relate to potential mitigation at the penalty phase of the trial and at a sentencing proceeding at a penalty phase there is greater leeway with respect to the admission of the admission hearsay and just as i would be able to introduce this kind of hearsay at a penalty phase of a trial so to you should therefore be willing to entertain these affidavits without them appearing in court as witnesses and without them being subject to cross examination and that's the only basis upon which the state trial court admitted those affidavits if defense counsel had come out and said and by the way judge i'm also interested in that was over the state's objection because of the inability to cross examine if defense counsel had come out and said and judge and above and beyond that i want you to consider this with respect to guilt phase issues with respect to mr richmond finances and writings on the wall that the state would obviously be screaming about the unfairness of that not being able to cross examine them  and the entire rationale of the admissibility being the leniency with respect to admitting hearsay at a sentencing proceeding does not apply with respect to something that would have of significance with with respect to guilt of the rd day of the evidentiary hearing all of those should only be considered with respect to anything affecting the penalty phase not the guilt phase to do anything further would  be would be extremely unfair to the state of the circumstances where it was deprived the opportunity to cross examine mr stephan and the other handful of witnesses had it been presented in a forthright manner  there were also a couple of questions about the test would be helpful if you'd tell us why all of this testimony that came in and the three point eight hearing wasn't a lot think that's truly significant outside of her outside of her and all of this it's much more than cumulative that one witness it's it's more people saying the same thing i don't think it adds anything significant to it especially when you consider the the the essential the minimal nature in which most of these witnesses were testifying did she say that she could never imagine him killing her there were several of these witnesses made that does dina muller say that right i  don't i don't believe that's part of her testimony but that that's never going to come into evidence at the trial that's i mean that's commenting on believability and credibility of someone that's sheer speculation it is no judge is ever going to permit that opinion into evidence at trial that i cannot believe this so you disagree that that comes in as method of evidence under an impeachment theory impeachment doesn't say that just because something is relevant to motive anything goes it's it still has to comport with the rules of evidence and the appellant's argument as i understood it is that this was not coming into the character it was coming in for impeachment well that's a that's a nonexistent distinction because florida's evidentiary code which is very similar to the federal code it has a section on impeachment and says that there are several means of  and character is one of them so there you know they're equal if it's not coming in as character evidence is a form of impeachment what other legitimate authorized use of impeachment is it it's not coming in as a prior inconsistent statement yes and as to most of these matters it's things that these witnesses don't even have personal don't even have personal knowledge of and that was going to zero in on one of the examples with respect to recollection of that is that she refers to this as something that she learned from having spoken to quote unquote friends who these friends never identified and regardless of who the friends were how is this not a form of hearsay that's never going to get past the gate when the when the witness testifies in trial court and says that and i knew she wanted to continue engaging in prostitution because i heard it from some of her friends now is the evidence that she did not want to continue and in prostitution admitted the evidence that she did not want to i don't think there was any objection to it or or quite well well one piece of it the witness steffen he did testify as a trial which is by the way he this was not someone totally new he testified at length in the trial and he testified to that point and his testimony came in because he said the defendant mr richmond told it to him so that's coming in as the hearsay exception for admission of a party opponent so that one was legitimately coming in but anything else whether it's someone saying that the victim told me or a friend told me take your pick any of them are subject to valid objections that this is hearsay an out of court statement whether from the victim or from a friend of the victim or someone or someone else for the truth of the matter and it's not coming into evidence at the trial so just to to rappel who threw up all of this up when you carefully look at all of these various witness statements and affidavits that they are talking about and you only have excerpts quoted from them in the three point five motion the affidavit statements that in their entirety and not were not before the federal district court or this court where they admitted in the state court proceeding yes so why are they not here i can't say why i just i didn't handle the case the case in the district court and i had to struggle that myself and not you only have the only access you have to them is primarily from the portions of them that are quoted in the three point eight five motion on the two respective claims they're not here in their entirety but when you when you look at them these are all about just the affidavit  the statements all in all all of them to have all of their testimony the one thing you need who tells you got the you've got the in court testimony and everybody of all those people you've got the in court testimony of every single witness who motion and which were also introduced into evidence at the evidentiary hearing there not before either this court or the district court so you just have various quotes and ex to go through coupled with corresponding testimony of those witnesses who did testify in court at the evidence cherry hearing but when you look at all of that information in any of those formats all of this is really truly minimal when you consider the limitations on these witnesses who had many of whom had not seen mr rhys min in five or ten years most of whom probably all of whom did not have any real personal knowledge of his finances witnesses who were landladies who said i got the check from him and said hello to him and didn't know anything truly personal about his background the hair salon owner who's well therefore i thought he thought he was well to do when you look at the totality of that package whether you're talking about differential standard whether you're talking about review this is not the type of evidence that would sustain any burden on the defendant for demonstrating either the prejudice prong under strickland for probably affecting the outcome of the proceeding or the car spawning materiality prejudice pronk under brady analysis which are largely the same thank you counsel i'm just going to start kind of where state opposing counsel left off with a discussion about these statements i want to point out that one of the key witnesses at the state of a nutri hearing that i've been discussing  scheck counsel for the state stated she only she did not test he made he replied that she did not testify the evidence she hearing in the only thing before the court is a statement of hers she was however a witness at the state evidence you're hearing she testified  that the victim did not want to quit prostitution and the state imposed no hearsay objection and so that testimony is before this court it was before the state court of the evidence you're hearing judge told questioned had the court reporter read it back just to be sure that that was actually what the witness had said she said she learned that from friends i don't know i don't have a whole transcript here she did not testify to that your honor it's not in her statement i don't honestly know testified in person that she testified in person at the evidence or here in your honor and you know whether or not she it's ok if you don't know she testified that she heard it from the victim your honor i mean that she was friends with the victims they had known the victims for several years  and she testified that she learned it from the victim and and i will say that that this trial was quite unusual with respect to things witnesses testifying with respect to things that the victim had told them normally a court would consider that to be hearsay and not admissible but at trial the trial court judge broadly allowed witnesses to testify with respect to statements that the victim had told them we have the complete transcript of her three point eight testimony that's correct your honor and do we seven witnesses who gave statements to the german police only nine of them were recovered by the time of the three fifty hearing in addition of a in the record i'm not sure they're in the record before the guilt i don't know the answer to that you say it's both the answer i mean i think the court has the portion of the evidence rehearing transcript where judge gold discussed the admission of those affidavits in the court can review that  in the record and then we have the affidavits that were appended to their original three eight motion and we don't know whether they're in the record or not he says you don't for sure know yes your honor like that and are there point out just that this case was prosecuted largely pro se in the district court and i was brought in to assist with an evidentiary hearing that was where trial counsel was going to be the only witness and then trial counsel unfortunately died before the don't have a weather makes a difference st i want to make a couple other points one judge hole with with respect to motive where were you your focus on the insurance policies i can certainly understand that but i did want to point out that that's not what jury was focused on when the jury deliberated they sent a question of the court where they asked for specific testimony and the only testimony they requested was that of dina mohler who was the prostitute who worked with the victim and i were talking the victim and mr reisman and i would say that therefore notwithstanding your honour's focus on the insurance policies the jury's focus in this case was entirely on the relationship with tween the victim and the defendant and the motive in this case  being that the defendant no longer loved her and that he killed her for financial gain i mean indeed the last words out of the prosecutor's mouth in this case were basically along those lines he said this case was about greed and about the end of a relationship and i also want to get your brief that that video could be characterized as the construction of evidence from someone who knew that he was about to kill his partner did anyone actually make that argument at the trial or you simply suggesting that the jury may have inferred that even absent a suggestion that that was the case well i mean it was put on by the defense your honor and so i don't think the defense made that argument and i'm not sure i don't i don't wan misinterpret the record i don't remember any reference by the state with respect to whether it went to their loving relationship or not but certainly the thrust of the state's argument was that for for a decade through these insurance policies mr reisman had been planning to eventually kill his victim for the money and that was the thrust of their their entire case and so certainly and they also argued that he had planned this thing all along and so i would say that it's not outside the realm of argument the jury would infer that this videotape could well have been just part of the plan to show that they were happy and frolicking in in miami and that this murder had not been committed by mr rushton i think i'm also mentioned that th trial judge took a rather broad view of the evidence in terms of allowing in a lot of evidence that may otherwise be considered hearsay when we're looking at whether the evidence that you not cite would be admissible do we offer our own interpretation of the hearsay rule or do we try to look at what we imagine the trial judge would have said had he been presented with this evidence well i think your honor has to look at it from the perspective of counsel at the time that's how you view the strickland standard and i think with respect to how the perspective of trial counsel at the time was you know whether he had to investigate this witnesses and presented them at trial what would their evidence have been and would it have changed you know what  there been a reasonable probability that the outcome of the proceedings would have been different and given the framework of the trial judge who was admitting what most courts would consider hearsay evidence with respect to victims made by the i mean statements made by the victim  witnesses i think you would have to take that from the framework of how trial counsel called these witnesses and presented their testimony the judge would have allowed testimony with respect to the statements that the victim had made to them because he did that throughout the course of the trial over defense objection  i would also say with respect to the state's reliance on what was briefed before the florida supreme court and whether that governs the scope of the a federal court is free to considers consider sorry theories about the state court evidence that were never presented to the state courts thank you counsel thank you