good morning and may it please the court my name is stephanie a drac this and i represent the petitioner keven robinson i would like to reserve two minutes mr robinson was convicted of two robberies and sentenced to twenty years in prison in a trial that was fundamentally unfair due to prosecutorial misconduct and the ineffectiveness of his trial counsel the only contested issue at his trial was the identity of the person who had robbed the two victims robinson testified that he was not the robber the prosecutor had originally filed five charges of robbery against robinson alleging that he was the lone robber who had committed those robberies as well as an assault the first jury to hear the case acquitted robinson of the three robberies and an assault and a hung on the remaining two counts wooden and taurus that kind of result is a rare event particularly when three of the robbery victims identify providence and the prosecutor was unable to obtain guilty verdicts in the first trial probably because of the evidence of robinson's innocence i witnesses who says that robinson was not the robber and the fact that he had no gun or robbery proceeds only a few minutes after the last of the robberies when he was stopped near the pacific coast highway it is the retrial of those two counts it is as it is to hear a trial where the prosecutor committed virtually every kind of misconduct that we see discussed in the case  the prosecutor vouched for the credibility of the investigating detective calling him a fine fine law enforcement officer and claiming that detective or america was truthful and not robinson  in their difference in their testimony where robinson had said i told detective romero that i had then at the jack in the box restaurant when the wooden robbery occurred and had suggested that footage of him in the  restaurant could be obtained via looking at the store security tapes the prosecutor the court of appeal called that comment about detective or marrows credibility an isolated event but it was not it was part of a pattern of misconduct that continued and permeated throughout the entire trial the misconduct was particularly prejudicial when the prosecutor used improper tactics to undermine the other evidence of innocence and in particular there were several examples of this kind of misconduct related to the testimony of ms various miseria as and her husband mr may heal were robbed minutes before mr torres went but this was one of the robberies of which mr robinson was acquitted in his first trial ms berea says testimony at the second trial was obviously she told the jury that robinson was not the person who robbed her and her husband hiya in the first trial the prosecutor had clearly argued that the person who robbed all of these victims was the same person the prosecutor responded to mrs verrilli iss testimony by claiming in his closing argument that ms berry is had been threatened and harassed by a defense investigator who had falsely claimed to her that he was a police officer the prosecutor also suggested that ms various had recanted her exculpatory testimony during a hallway encounter with the prosecutor and her pastor the prosecutor told the jury the defense counsel had intentionally elicited a racist remark from ms bree as during her testimony and that he did it in order to anger and inflame the jury the prosecutor also misstated mystery is his testimony when he claimed that she testified that all black men look alike to her in fact she had said that young hoodies looked alike to her the prosecutor also suggested that ms bria should not be believed because she had an attorney that was advising her he simultaneously suggested that she m already knew that mystery has had changed her testimony though right the jury knott's not the case i believe your honor i mean her testimony was somewhat wavering but she said that she had not said that mr robinson was the man at the time of the field show up she said that she said that it looked like him or it or sort of in other words she qualified what she had told the officer and what it looks like if they're reading of the transcript as she may have said that it looked like him but the officer wrote down that's him and she insisted during her testimony actually that she had maintained the entire time that that was that she could not identify robinson is the robber and at the time of the second trial and at the first trial both she and her husband quite credibly testified that he was not the man and they had specific reasons for it they said his pants were different and they said that he was mr robinson a lighter skinned individual than the person who robbed him so it wasn't as though their testimony was incredible it was not and the prosecutor unfairly suggested that she needed a lawyer because you know she was lying and also suggested that well of course her lawyers advising her so you shouldn't really believe what she has to say and one of the other inferences improper around that is of course mr robinson testified as well and he like ms rios was represented by counsel throughout the cross examination of mr robinson you see the prosecutor referring again and again to mr robinson's contacts with his lawyer you told your lawyer this your lawyer that it comes up several times he's making an improper suggestion there that because mr robinson has a lawyer he should be believed in various as well the court of appeal opinion unreasonably determine the facts when they found that this is his testimony was somehow collateral or not really that important they dismissed this whole line of misconduct as not really being that important to the outcome even the prosecutor him self at one point in the transcript said well you know the reason that that result happened in the first trial was because of the heah because of them a he a case will be as testimony is about them a good case it's her and her husband mr may here who were the ones who said that's not the man so this berea is his testimony was critical to this trial because if believed then the jury should have acquitted mr robinson of the wooden and tourism crimes as well as the three that he was acquitted of in the first trial if one looks at the timeline given by the prosecution witnesses this the evidence of innocence here is quite convincing mr wooden was robbed at about six thirty but then the torah's and we hear robberies happen quite close together at eight twenty pm and then at eight twenty five pm mr robinson wasn't just stopped once by police he was stopped two times before eight thirty one pm the call that went out saying the police the second set of police were talking to him went out at eight thirty one pm how was it that he could have been stopped twice not perspiring not out of breath no gun no robbery proceeds and those police officers did a thorough as if i could interrupt for just a minute the problem in your case as opposed to maybe some of the the previous one is mr robinson had a very good lawyer who really did a very effective job of both cross examining the government witnesses and also making objections and the trial judge did a pretty good job of sustaining objections when a ppropriate instructing the jury to disregard things and the i agree with your hundred percent the prosecutor made continuous wrong arguments and misconduct but how can we say that that case rather than a specific violation of rights case the you know unfortunately in the supreme court authority that it's a discusses this sort of long term you know through the whole trial kind of misconduct which i believe is berger they say they state in the opinion that this was throughout the trial that there was a lot of misconduct going on but they don't articulate point my point each instance of misconduct so that's probably the best case as far as you know what your honor is describing is the kind of permeated the trial type of misconduct but we don't you know we don't have exactly point by point what happened in this case the but that is what was going on in this case we have a prosecutor here who was on a mission he you know been defeated in the first round and he was going to get this  defendant the second time and he did it by anticipating what that it in a sense evidence was going to be and then undermining it in a way that he's constitutionally not allowed to do and if  presentation was made of these facts particularly with this timeline with this you know with with the evidence that we had of witnesses flatly denying that this was a man when they had no would submit that nothing the prosecutor did rose to the level of misconduct admittedly there were a few errors that were made during this trial however for a cumulative analysis  proceeding on an inconsistent theory of guilt which he did not do the theory never changed between the first and second trial it was that petitioner had personally committed these robberies but whether there was on with them or not changed  character characterization as assailant misspoke seen as did testify that there was a second person present however that was going to come out regardless i think what the prosecutor wanted to do come out in the first trial i don't i don't what you mean by  matched the description that both torahs gave so the prosecutor then you know reasonably had a discussion with martinez assumably learned that her testimony was going to differ from what she had said in the ny one one call the prosecutor then had had two options of course it was discoverable he would it would have turned that over to defense counsel so he could either let defense counsel bring it up in impeach mr martinez after she had testified regarding the nine one one call or he can get in front of it and bring it out himself which is exactly what he did so just because he introduced what martinez was going to testify to in trial doesn't necessarily mean that he was introducing the second person he was just trying to get in front of what martinez was going to testify in the inconsistency of that testimony between the testimony that she gave and her nine one one call as for the  fine fine law enforcement officer it was in direct response to defense counsel's repeated attacks on the investigation itself defense counsel  made numerous attempts to to highlight the fact that petitioner had allegedly told how did the statement i submit to you that the text of morality is credible not be factual well i would meet the south the most articulate statement i think or you suggest that the witness has some information beyond what's in the record for their testimony i don't agree with the last point but before that that's that's what he said well and i would disagree i don't think he's commenting on the truthfulness of officer romero at that point i think that is why he isn't it's morales i think that he says i'll put i'll put those two witnesses before anybody any day and i submit to you that detective morale is credible i'm sorry i was speaking as to the fine fine law enforcement officer regarding the credibility discussions between morality and then he does say it again with officer romero but i think it's in the context of he's presenting a statement that says romero is saying this the defendant is saying this one of them is line i submit to you that romero was not i don't think he but when he says he's a fine fine police officer he says i've worked with this person i know his reputation this is one of the best police officers you know  if you say you have an instruction from the court saying who has something to gain here and how do you determine credibility you talk about his years as a police officer that you're fine on that but when you say here's a defendant because he wants to get out from under this charge and a police officer who i'm telling you is a veteran police officer a fine public servant that's vouching now may not be a constitutional violation but it was certainly something objectionable but go ahead well i mean again i would i would disagree with the character of a characterization i think it's you know well maybe a better statement would have been petitioner a defendant is lying  you're again you're presenting you know two entirely inconsistent statements so when morales said that rios had approached him and told him that that she had lied at the credible right i mean i know that because i know i mean he's a good detective and i agree that is a decision for the jury i would just disagree that i think the prosecutor well again may have been in articulate was was just stating i submit to you that this person is the one to believe i don't think he was saying that you know why you should believe him you know based on my personal opinion is just you have to believe one i submit that you should believe this one as for the fine fin officer comment i think that was in regarding the competence of the investigation and whether he would have gone out and looked at surveillance video i don't think he was speaking as to the truthfulness of officer merrill but he was suggesting by saying that that there must not be video right which we don't know whether there was or not well i think it was a reasonable inference that had petitioner told officer romero  that he was at a business where there was surveillance video that off the romero would have investigated officer romero did testify that petitioner never told him that he was out of business off the romero also testified the petitioner did tell him about the abandoned house that he lived in which officer marrow did go investigate so i think it's a reasonable inference to say officer romero was competent did follow up on the leads that he had had he been presented with this other lea that petitioners now is now presenting he would have followed up on  racist in nature and i think defense or excuse me the prosecutor had every right to bring that up it was clearly the defense strategy right from the beginning to highlight cross identify cross racial identification issues and  question presented to elicit a statement that would inflame the jury and i think the prosecutor in this wide latitude during close had had it was appropriate for him to comment on that  i am prepared to speak as to all the allegations i don't know if the court has any specific allegations that they would like me to go into further thank you counsel thank you just like to briefly respond to some of the court's questions the court asked about whether the trial judge had instructed the prosecutor at any point don't go into this and there were some statements made particularly as to bringing up  this new theory that perhaps there was a second robber and also the new theory that perhaps tourism may here weren't robbed by the same person the trial judge said that's an ethical you know basically stop doing that don't do that you've already said that the other trial your you know major pitch that this was the same person and you cannot now change that in bringing up and bringing in the live testimony of ms martinez  martinez the prosecutor was undermining the is innocence evidence with this new idea that somehow there was a second person robbing mr wooden and if you look at the nine one one tape it which is in the clerk's transcript on th not in the excerpts of record it does tend to show it shows that she called the police and she described one person which she admitted under cross examination at the trial so this is an extremely dubious tactic you're suggesting there was  second person and i would submit that it was to undermine the factual scenario that we talked about earlier how in the world could mr robinson have robbed these two men and you know within a couple minutes be so relatively far away and with nothing suggesting that he just committed a robbery no gun no money i mean if the only way to really reconcile that and undermine it actually is to suggest to the jury that there was a second man and that was done through the testimony as of ms martinez where she gave testimony that flatly contradicted what she told the nine one one operator and there was no detailed description of mr robinson torres said he was robbed by a black man that was the description before he we went to the field show up being shown one person mr robinson that's where his description came from and mr wooden is well he was knocked out he didn't give a detailed description and he also gave a very generic description of someone who was close in height to himself wearing baggy clothes there just isn't enough there to say oh yes these identifications are really reliable they're just not in it you know as to whether or not detective or merrill would have followed up on the leads they were there which mr wooden was bludgeoned with a gun defense counsel asked did you ever test mr robinson's close to see if he had any blood on him no they never did to the two witnesses may he a n torres both said that their wallets were handled by the robber that never tested for fingerprints or d n a so it's just not the case that mr robinson was obviously incredible when he said i told detective or marrow i was at a jack in the box thank you counsel thank you thanks both for the helpful arguments the case is submitted