off i'm a lawyer from the state of washington and we never allow and a death penalty case someone who's not had prior experience in death penalty representation to be a deputy district attorney he had homicide experience here i don't want a homicide case yes but that's per se does not make someone in effect we have to look at the record and see what he did that anyway i just want to know my special concern here but i think if we when we go through the facts and see what happened the court's concerns on that point will be alleviated now in this matter  mr daniels did not communicate with mr gore he did not talk about the offense now the district court the lames jordan for that failure to communicate but the ra was asked by jordan for any help there's no indication that petitioner spoke to rock the vote like happened there's no indication in the record at all that petitioner who's been represented by president council fo years has spoken to them about the facts of the case as a matter of practice sometimes attorneys are faced with clients who don't provide helpful information sometimes as attorney you speak for your clients and your client will simply tell you yes i did it and the attorney has to do the best job that he can or sometimes the client might tell a story that them from saying that well i would differ with that i think there are a number of times when a defense attorney will speak with the client and your client will tell him that he is guilty of the crime and these tourney will will do the best you can the case will often proceed to trial without the testimony of the defendant which which happens frequently but i don't think that is rare when a client confesses to  situation where the vietnamese individual i didn't have confidence in his public defender so he wouldn't talk to him and he wanted a different lawyer and  that was either a motion to substitute counsel or a motion for continuance and that motion was denied and that matter was remanded to the trial court for further all that petitioner confided in ross certainly if he had done so ross would have for that information to jordan but he did not at the hearing in the district court petitioner could have made some leave the house of course renee ross who was basically there in the closet during this whole incident didn't hear any such demand on the part of petitioner after the shooting  or he told her i had to get even with what they did for me before obviously we for going to the prior shoot out where he was rendered a paraplegic he also told had smiths simply that i saw my opportunity and i took it he didn't help have smith well i i wanted to get out of the house so i drew my gun and then the officers drew their gun and then to my surprise i ended up in a shoot sometimes as in a case like this at the fan it is simply in a position where he just doesn't have much of a defense and that's what happens when you're the when there's you a witness show well it was james cornish his house and james cornish apparently left his place of employment about the time of the shooting and he he i do says evidence that if another person may have gone to that house for whatever reason and what's interesting there's no indication that petitioner objected to that defense that this record says well the sole focus should have been on preventing a verdict of death in this case but petitioner may not have been so willing to simply say ok let me go to prison for the rest of my life there is no indication at all that petitioner objected to the defense there of then other cases in which there have been conflicts between attorneys and defendants that have resulted in reversals but i don't think there's ever been a case where the only conflict is simply a lack of trust there was no dispute about what type of trial tactics to use there's no dispute about what defense to offer what  didn't want any other witnesses called both at the guilt phase and the penalty phase so in this matter jordan faced with a client who wouldn't communicate with him did the best he could he presented a defense in the guilt phase he was going to very tough situation and he did the best he could he provided some sonar yo whereby a jury could find him well maybe someone went into the house and and committed the murders in the penalty phase he produced numerous witnesses who testified that jackson daniels was basically a good man despite his his past record he did not really bear any hard feelings towards the police he would not present a danger to the department of corrections person so a defense was presented both at the guilt phase and both at the penalty phase i don't know what more mr jordan could have done there's just nothing in the evidence showing that he that there was more of substance that he  appoint someone else so you kind of had a revolving door of lawyers and there for a while there i think that's very common that a public defender will be appointed a public defender will be relieved  prosecutors become defense attorneys there's got to be a first capital case for everyone and even if there isn't we have to look at the record and see did jordan or did he not provide effective the evidence of doubt and mental state in the past and mental problems daniels that should have been brought to the court's attention that concern me well i would  he didn't think anything was mentally wrong with him and then mr jordan who did have a lot of background and mental the fencers knew dr all over from his past experience as a prosecutor and he had dr all over render a report doctor all over didn't find anything wrong so we have a situation where two different so i cry for us have examined your now i think they had access to his his past history our i'm not sure of any tests were administered or not but the point here is that mr jordan was entitle to rely on the bill to rely on all of his expertise but let's go even beyond that let's go to what happened post trial and of course there was the presentation of the testimony of dr bank and the testimony in rebuttal of dr bieber but then even after trial we have dr rosenthal who first examines petitioner and says there's a possibility of brain there is a possibility of the petitioner having brain damage and the certainty that he had brain damage dr stahl berg pointed by the district court found no evidence of brain damage d every one point that petitioner had to have a had a paranoid condition so he couldn't cooperate with counsel and then his conclusion he says well you know i don't think everything was done in this case present mental defenses that may have been available but over all this time even though they have criticized dr oliver and and dr phil counsel come up with nothing solid to show there was anything wrong with daniel's jordan testified he did not think there was anything mentally wrong with daniel's  all these years there is nothing solid to show that petitioner had any mental problems if there weren't to be a retrial the evidence would not be as strong as the banks his testimony that maybe he has brain damage because at this point the prosecutor has the testimony of stall bergen has the testimony of dr lee that there is no indication of brain damage so i know that the court requested this is one of jordan was appointed four months before the trial and the other called the good ones do you think that competent attorneys are qualified and have the time and ability to present i don't think we can look at the matter of time and involve involving the penalty of death yes that's my recollection and he won the case i think i don't know if you won the case but it doesn't mean he was in effect at i think what we have to look at first of all is not just the time before trial but the time during style court i'm not talking about ineffectiveness i'm talking about the court violating due process rights and giving an attorney who is reasonably competent the time the time was sufficient and we know that by looking at the record there was there were all these witnesses who were presented and the penalty phase there was dr banks's testimony that was presented in the penalty  more time and more money i don't think that means that jordan rendered ineffective assistance of counsel let's look at all that has transpired after the trial what he has petitioned to come up with over these twenty years nothin presently got to be depressed by the whole situation and the steps for a while time goes on things change irrelevant to this case because the public defender did not record in this case because the public defender for nine months try to get out of it but the public defender did get out of it right miles later without doing any work and then and then mr rock was appointed intel for a period of time until it was pointed out to the court that he would be a witness for the prosecution which he was then mr jordan was a point person to the witness it's turned out isn't that right my recollection that he did testify that he testified that petitioner had been told that he had to surrender himself in court on a certain date and did not do so that's my recollection and that was what they said they were going to have him testify he was going to be called but he didn't need to be called they had a lot of other ways and probably well again the fact remains that even with the problems with the public defender and with ross appointment and remove all competent private private counsel was appointed he had let's say four months before the entire trial was to begin and of course after the trial began he was not constrained from preparing the case  that defense attorneys ask for a continuance and just because the court doesn't grant it doesn't mean that the that the motion should have been granted and i understand the court's concern that the with the what this problem with  mr jordan didn't have the ideal amount of time that he should have but what we have to do is look at prejudice we've had twenty years since the conviction that are the time and money like me the money wor the due process clause does not require prejudice it requires a fair trial and that's what that's what petitioner had in both phases of this trial and i think it's very important that we not just focus on what happened before the trial and say well this wasn't ideal george should have had more finds we should have had more time but let's see what happened afterwards what has petitioner come up with nothing there's no  and disagreed with the attorney general's analysis as it relates to the penalty phase i think a good place to start with the pound the face in the office is with the california supreme court's opinion wherein the ground hearing the penalty phase here that we would view to be law and the california supreme court found that the district attorney which court approval was allowed to argue that all absence of mitigation is aggravating evidence which is incorrect the california supreme court however stated because of being minimal or de minimus mitigation that was presented to found this virus to be harmless so i think it was with great interest that we noted in the district court court noted that trial counsel came forward in his testimony and repeatedly in this declarations and stated he felt different outcome of this case was possible that he felt there was powerful medication evidence that he was surprised because petitioner was not in his words i'm speaking with him was not willing to confide in him what i think the case i believe judge less wanted to make that finding of fact him self based on evaluating the record however we didn't receive the the judge roll what a reasonable lawyer would do you really are assuming that all judges both reasonable lawyers will do what we disagree with just less and we felt we should have expert testimony on that point and we did submit to declarations to the court jack early in michael berg with capital litigators who mr early had to have practice in riverside during this time period indicating that they felt the preparation this case f that you bring a due process process violation except for the except for the the prejudice and what your petition contained the due process argument except for the part pertaining to r that's part of my responsible to be forthright with the court about my feelings i would point out however that i think the mitigating that didn't exist in this case and i strongly disagree with the attorney general on this point was massive and that the omissions obtained the records of that act he in out of pain the riverside community hospital records that reflected that mr daniels had been unconscious been in shock for a period of time and i think that's important for two reasons first that shows a lack of preparation secondly it shows that this was information that was important in light of dr banks's latest later screening test that there was an indication of brain damage the fact that he'd been unconscious and in shock dr rosenthal mentions that dr abiding faith in mr right he thought he had saved his life along with his long relationship with him while he's out on bond again none of these records are in trial counsel's files or knowledge mr daniels then or honestly arrested in august of one nine hundred eighty one dragged to the recycling jail he is left in a condition where where he's not treated medically as a paraplegic he left without a catheter for an extended period of time he subsequently taken to the roof like community hospital again where he is suffering from your own poisoning  robbery appeal is denied and attached to that are declarations from doctors indicating that if you use incarcerated it will be an endangered into his health that he fears for his life and that additionally his he's now walking outside of a wheelchair with the use  and and a cane and that any further treatment for the treatments necessary to really get out of a wheelchair none of this is within trial counsel's knowledge or nor does he have those records finally there is substantial evidence according to people close to mr daniels that he had a paranoid conspiratorial sense as to why he had been focused on by the riverside police when news paralyzed he had a totally on base belief that this was connected to a shooting years before involving another person he was had a record the and testimony of the children a massive lack of preparation due to time lack of funding and simple lack of taking the basic steps that you do to to uncover someone's life the issue for the district court was why had all this mitigation lost or not within trial councils now it's in the district court ruled that has there been a map of a complete collapse of the trainee client relationship here in the district courts world words greater more clear breakdown than you could find in any of the ninth circuit case  and and i would point out that the attorney general and i think this was very clear by the from the record is simply wrong mr daniels was not willing to try and talk to counsel this court has uniquely before it letters that mr daniel was writing concurrently investigator bruce cummings who stuck aeration is before your honor's i believe that everything that i'm saying to this lawyer is being repeated to the district attorney he has absolutely no paper he can confide in jordan jordan must have known that his trial counsel his wasn't appointed i'm not going to go back into that i think another point that the district court would exactly correct on was that this lack of communication the c reconcilable conflict was exacerbated and this is very much intertwined with the ineffect representation as i've pointed out mr jordan was completely aware in his words that he did not have a functional or useful attorney client relationship if he believed the account that just again is believed he was there to obtain a death verdict he never comes out and tells the trial court that mr daniels repeatedly brings to the truck court's attention i don't trust this man there's things that have crew that occurred that caused me to distrust them and counsel mr jordan or mr small town council never come forward and say what is chronicled in all the ninth circuit case law that he's not communicating with us he's not talking to us he doesn't believe he believes we're here to work against him they don't make the type of record the trial court needed to realize how irreconcil conflict was additionally as the courts are requested out they don't they by their own statements have not begun penalty phase preparation till after the guilt phase that's why they're moving for a continuance they tell the trial court this and they indicate in mr jordan indicates in this testimony for the district court that he was well on notice that there were serious mental state issues that needed to be investigated by way of litigation this man had a mental history going back to one thousand sixty two contrary to that the way counsel characterized the state of mind he has dumped them some describing his prison records that are subscribed to good friend act out of touch with reality not understanding what's going on however you diagnose these are symptoms going back more than twenty years of mental it's not followed up by the defendant dr oliver just d m and dr oliver reports back this man won't talk to me he believes my conversations are being monitored he's paranoid he's suffering from paranoid ideation they don't follow up on that and they send him back to banks nothing was done to follow up on that i can see that there was severe time pressures and money pressures it's mind boggling to me and basically a trial lawyer that money was not authorized in this case until after the death verdict occurred for expert exam nation as a practical matter how do you hire somebody to come in and your client on the first question is to be a money authorized for me to work you have monitored that i will be paid with later trial counsel said i wanted to follow up and investigate why this man wouldn't talk to me i didn't know if there was a mental problem here it was simply distrust that had been engendered over what had happened in the case previously i didn't know i wanted to file up probably what planet i had no fun until after the verdict  had occurred when litigation was presented in the penalty phase it was white by way of dr banks that turned out to be more aggravating and mitigating this was a man with no criminal experience it was an unreasonable choice to select he had the simply done screening test for his own testimony said i need to follow up on my testing i want to follow up on my typing there were no funds he did not have all the records i previously described to the court to have an accurate profile pursuant to carol we would for a tit of the of this man and formulate an accurate opinion as to his mental state and most of all mr joran themself says i would never presented that expert had i understood what he was going to stay i put him on the stand on the spur of the moment i didn't understand that it had the money was going to be so damaging that the task that he relied on was so unreliable and it ends up being more aggravation evidence and mitigation becoming a symposium on top of the apathy rather than a discussion of mitigation phase so i think that the trial court in the conjunction with all the other errors in this case correctly found that mr daniels and happen provided a fair trial one other point i want to make before i defer to my my friend my co counsel this didn't matter we know it didn't matter from the record the coun for the government would have you believe none of this matters this man didn't even need a trial it was a done deal well the jury struggled in this case they came back with a question during deliberations panel the lobby changed the objection daniels will be given life without in spite of that the jury was struggling and it makes sense that they were counsel challenged just during briefing before the district court to get declarations from jurors to show that this was actively being discussed with surprise to declarations to the district court of jurors fifteen years after the birth they remembered the key to discussions over whether life without parole really meant that this was a jury that was struggling with this decision they wanted to understand what led up to this shooting made in one nine hundred eighty one they wanted to understand this man  daniels letters concurrently with this relationship with mr jordan where you can see and track the developing distrust in this mind towards jordan he clearly was not just unreasonably unwilling to talk to mr jordan or to trial counsel he did talk i know about your life i gather the records since one nine hundred eighty when you were paralyzed i know what you've been going through let's talk about it mr jordan had that information in fact he cut off dr banks his preparation dr banks that i had no information from developed and i think mr daniels in the discord state that had ample cause to distrust who was going to be appointed just based on what had happened before mr jordan was when he had a public defender appointed for eight nine months who was telling the court at the time of appointment we have a conflict you understand when we need to school as to why we have a catholic were being sued for ineffectiveness by this man at the stand because one of our office members was negotiating with the district attorney's office while he representing him on the background and there's no inquiry which is required under the case law after that was removed when daniel's the one person he trusts with good reason the one person you trust is removed when he sang our way whatever you want him that rod they resented writing requested by mr daniels whenever he went to court and i don't know what was going on in their minds that they had this belief they needed to prove that they had control of the case but you know you see that happen with with lawyers morning your honor is i'm john phillips or i'm actually i don't have very much to add given the interaction between the court and my co counsel i think that really the the main point that i'd like to make to the court is that in failing to provide guilt phase really in on the sixth amendment issues in this case the district court was simply wrong it was simply wrong about what what escape hatches that were there was  the the sixth amendment violation that it said defined the irreconcilable conflict between daniel's and his counsel clearly the court found i think and six or seven places a lack of blame at the feet of counsel or at daniel's feet in fact its focus was more on the trial court and i think the the district court was concerned that the trial court was told at the time of the arraignment about daniel distrust of the public defender the trust and wrong and then you have has a judge ferguson was mentioning there was a motion to continue that was predicated this was prior to the the guilt phase trial and certainly there was a motion to continue brought in which among other things the defense investigator was saying you know we've only interviewed ten of approximately one hundred witnesses that we feel might be pertinent and trial counsel are saying that they aren't prepared very soon thereafter the the trial court calendars a hearing a stance of lee to deal with a motion for a continuance and at that point daniel's announces that he's not going to waive time in part because he he at that communication problem had had actually perfected it and the difficulty was that the trial court's view at that point was that daniel's had no right to insist on counsel of choice from its view point so its view point was look from what i can see you've got competent counsel i'm not going to appoint rot i'm not going to inquire further there were apparently some hearings that took place in the past the dealt with your counsel issues ro has been removed we're moving forward and so not only does the trial court decide that it's not going to give trial counsel further time but at that point at least focusing on the on the sixth amendment issues incidentally is just after this court decides the hudson case in which the court begins to define the kinds of inquiries it's expecting that state courts will engage in to actually conflicts between a public defender pointed challengeable and and accused and the need to figure out how you work your way through communication impasse essentially the trial court has taken the view point that once rock has been removed and is not going to be reappointed daniels has complaints about council about his lack of trust in council are not going to be listened to and unlike the attorney general's viewpoint i think ours is that while daniels may not have been artful and his statement of his the basis for his distrust in council he did in fact point out at some points that that he felt he was  saddled with a co counsel new to the case who'd never try to homicide who don't have been in practice for tonight half years that he felt the council were not moving in certain directions that he had wanted them to move  then of course there are persistent complaints after the the guilt phase moving to the complaint made against council prior to the penalty phase and then the statement that's made at the end of the case where  daniel's characterizes his lawyers as warriors without a weapon takes its position that no matter what this guy would have been found guilty did you have to have prejudice mayfield where you have overwhelming evidence of guilt and clearly judge lester's viewpoint was that there was overwhelming evidence that daniels was the perpetrator then  you can essentially wash away the presumed prejudice of the sixth amendment violation the difficulty being and perhaps we did this in artfully in our brief is that of course you can be identified as a perpetrator in a murder case and still not be the individual killings and then the second thing the judge lets mentions is that there is no show up showing that there were other lawyers available and in fact there are some points in the record in which it's fairly clear that there are other lawyers available for example the former riverside public defenders and in private practice is consulted as independent counsel at one point during the course of the attempt to resolve the conflict and in one of daniel interaction with his trial counsel jordan and we jordan is puzzling about how he got appointed since he was lower down on the left our problem was frankly that we inquired into the appointment less than that the appointment list from may have one thousand nine hundred ten from february one thousand nine hundred three was not available but clearly with respect to that issue i mean counsel and our counsel are found to deal with these cases whether they are brought in from out of county or not so the real question is whether judge lapses right that this court has kind of a weight of the evidence exception to the brown v craven line of cases and the reality if you look at brown v craven itself in a case in which it's fairly clear that the focus the attention and the murder cases on brown he confesses to having been present in an apartment you know his his girlfriend who's the victim in the case and this course position with respect to that is simply focusing in on the nature of the communication breakdown it's very clear that there is a sixth amendment problem so it's not argue is again very simple that based in what this court's view is the judge last was clearly incorrect in his findings with respect to the basic facts this is a brown v craven you must you must go to the bar and california system is an experienced lawyer who lost every murder case you tried you know i actually don't know lawyers who've lost every murder case he's tried they don't talk about well that's that's possibly true although i think gives the court knows there's enough of a fraternity of the bar that we do share an experience about our losses but i don't think it's i think the problem your honor is in part that this is not only his first murder case defense as a defense lawyer it's also his first capital case and and i think that part of our emphasis on his background and on on appreciating the problem that was created was that he really didn't if you look we feel sorry for him if you look at his writings here on ars he he gives you a hint of some of that very early on and again his writings are dated so that you can almost see the number of times that jordan has come in to see him by the time he's writing certain things to rock he's talking about the fact that his lawyer is talking about running an n t i defense but at that point this is prior to oliver even seeing him he's talking about the fact that the only way that you have out of this is as as daniel's understand it is essentially to plead guilty and so is mr  appears from daniel's understanding again that his view is this guy's background as a number of years with the d a s office and here i am thirty days down the road and this guy is basically telling me that  you know i better fall on my sword and you know deal with the situation and so that i think feeds and to his distrust it's not completely arbitrary and i think question a lot depends on on the whatever ruling is handed  you there has been a lot of discussion concerning the irreconcilable differences between yarden and petitioner and there was certainly a lack of communication but i think it's important  mind that there was no record than reconcilable difference as an asst far as we know from the record as least over what type of defense to use either at the guilt phase or the penalty phase or what type of witnesses jordan simply was not trusted by the titian or but it's not a situation as in other cases where there was a discrepancy over what type of defense and i think that is minder standing mr jordan did have a prior homicide case as the prosecutor before the record shows that he does he did ask for help he knew raw personally he testified the hearing it is true he did not receive all the funding he requested or all the time he wanted but when we look at what happened we see a liger risk of fence at the guilt phase where he brings in a doctor evidence of guilt there was no basis to reduce this to a voluntary manslaughter somehow and there was overwhelming evidence of aggravation i think that last couple sentences there was no basis to reduce th paste from murder to manslaughter under california law you have to have self defense or reasonable self defense or or kill in the heat of passion which was not possible in this case and in the penalty phase you had daniel's lengthy history of violence which included prior shootouts with the police and i think most importantly of all the  trial when petitioners present counsel has had a lot of time to discover allegedly what jordan should have discovered but didn't there was really nothing of substance there would would have made a difference in this case or i don't know the answer that question it but the jury didn't know he was a player paraphrase it the jury didn't know about the prior shooting incident i don't know if the evidence show that his paraplegia resulted from that prior shooting  don't think my office would be interested in some type of resolution killed here so that's a factor i think his prior fish news prior record is also a very important factor too i don't as a general rule i would i would doubt if my office would be interested in mediation or maybe two of them were from california yes all right thank you damaging by products of their being a break down the attorney client relationship in this case i again i strongly when empathize mr jordan denied having his records or his knowledge the essential story of mitigation and the guilt phase that was critical to talk to mr daniels in presenting its case he didn't understand how mr daniels got paralyzed to do not understand about his real rastas mistreatment and all the records that corroborated that the witnesses that corroborate that that was a massive omission if mr daniels had had happen and in his counsel he did have the option and this is for him to decide with counsel and effective counsel should i kept the fine explain what happened here this was a man who had substantial reason to believe based on past mistreatment and feeling his life had been jeopardized that that could happen again to him and his explanation obviously the shooting did not occur immediately upon the police coming to the house he was usually located they had entered the house they were actually information to communicate all right thank you