things i'd like to discuss with you this morning my plan is to begin with the pending request to expand the certificate of appeal ability this if only i'd like to start by speaking about uncertified claim number two which is our ineffective assistance of counsel or i bleed into our claim but you're correct it is quite narrow so beginning then with our certified claim the notice issue mr kane was deprived of notice with respect to the attempted rape special circumstance contrary to the prosecutor's representation to the trial court this issue was not brought up until the prosecutor's closing argument of the guilt portion of the trial literally giving mr kane absolutely no opportunity to respond to it with any substantive evidence well except he has a lawyer and the lawyer said that he knew and i i'm assuming i don't know if you do capital cases in trial as well as here yes you that sort of capital litigation one o one is all the special circumstances that are like this the language is of the crime or the attempted commission of the crime whether it's burglary robbery rape or any of those and i mean that was the first thing that i looked at and i thought everyone knows  that if it's a lesser included offense anyway it is a lesser included offense but it does require an additional burden on the prosecutor to prove specific intent to commit rape you know it was we're dealing with notice at this stage right so as instructive notice and i don't think so your honor because it requires more on behalf of the prosecutor the defense has to be on notice of what the prosecutor actually has to prove and the addition of the attempted rape changes the burden of proof the going back to your honor judge callahan point the problem with with i mean why are new it and really a lawyer shouldn't be doing capital cases if they don't know that reading the special circumstance in the they're all like that where you are this is somewhat analogous to the situation  wigan's where the lawyer represented that he knew what was in the substance of the mitigation evidence that was not presented at trial and the supreme court rejected that as post hoc rationalization based on the facts of the case and i think the same is true here but let's look specifically at what the information actually said the information cited to a statute one ninety two one ninety point two a seventeen that's pacific statute doesn't say rape there are actually thirteen subcategories one of which is rape but the allegation was th murders were committed during gauged in rape that's why the limiting language of that information is so important because it's the limiting language that tells the lawyer that rape is being charged but it doesn't say and or attempted rape which is different than if you look at the robbery charge where the robbery special circumstance pacifically alleges robbery in the in the commission of robbery or in the attempted commission of robbery the difference in those two charges is very significant and if you look at the defense that was presented the defense lawyer never offered any defense to the substantive charge of attempted rape the entire defense is based on did penetration occur that's what the experts testified to and in fact the lawyer the defense lawyer himself elicited information but you don't have to have penetration for an attempted rape exactly and that because the defense was entirely focused on penetration and that one was on the bad undressed below the waist laid yes right that's correct now the defense allege that multiple people entered that house and mr cain didn't touch that woman well but that's different than being on notice of the rape or the attempted rape type of thing because my understanding you know and i know this sort of plea cain had admitted to the police that he was in the house but he was there to commit he was there to steal and he also admitted that he went back to the house to clean things up right i don't actually agree with that categorization i and what it had meant to the police he admitted that he was in the pool out in the house when it happened when it happened he did not admit that he went into the house for the purpose of stealing of the interrogation where he allegedly said that he in fact stole was not on the tape recording the police officer falsely testified that the tape ok but but in terms of the evidence that came in they said that there was a glitch so the faced with the fact that he's got to deal with the defendant that that the jury has heard that particular evidence so he can't you know well he could he could but he i think probably could you could say reasonably decided that he focused his defense on that he didn't commit the murders and so he didn't kill anyone that and he that he only wanted to steal and that he didn't commit the rape right he did argue that he didn't commit the rape and that he didn't commit the rape and so you know my understanding of this and i pretty sure i'm right on this is in order to get the specials you have to be convicted of first degree murder first that's right which the theories are all a little bit entangled because how you get to first degree murder is when jessie davis is in the commission of something right i mean the defense lawyer conceded first degree murder so that was kind of off the table i mean this whole case really came down to after the concession to first murder the case came down to the special circumstance like exactly exactly and that's why the late edition of the attempted rape special circumstance is so troubling and and what's also so troubling is  that there was a very obvious mental state defense here which the trial attorney did not pursue and that really believes in to our ineffective assistance of guilt claim which before you get to the rest do you want to same thing about the  e assistance of counsel issue i think the prosecutor knew full well that the information did not allege attempted rape that actually removed that after the preliminary hearing and never charged it again so this came out of nowhere and then the prosecutor falsely stated that he had argued this in his opening statement which wasn't true i mean we've put in his entire opening statement right that bush that you know nevertheless i do think it's worth looking at this court's decision in the god case where a very similar situation took place in an additional enhancement was added very late in the game after all the evidence was put in to defend it was ultimately convicted of that and this court found prejudice under ed because there was an available mental state the fact exactly the same as here when mr god had used cocaine just before this crime took place on that basis i think that case strongly merits relief on this issue or a co change your game plan by going to the certified first you take it from here now and anything else you want to raise i'd like to speak with you about the the i c penalty plan if that's all right and just briefly reciting the procedural history of this case on march twenty fourth two thousand evidence rehearing on seventeen claims and some claims eleven days later the u s supreme court issued its decision in pinhole stare that case does not discuss twenty two fifty forty two and on its face is one hundred percent consistent with  nevertheless the next day the district court removed the evidence rehearing and ultimately denied relief on all claims including those seventeen claims and some claims that mr cain had just been granted a hearing on no where is the district so we know one director that that's a decision on the merits and we have to sort of guess what the california supreme court in that situation i think there's really two possibilities the first is whether counsel excel had made a reasonable strategic decision not to present  type of classic mitigation evidence that we present now specifically brain impairment social history and intoxication with respect to social history we know that council excels strategy was to present social history  actually physically promised the jury much like the attorney in the wakens case that they would get a complete picture of tracey kane and he said simply told them you were you were the tribe or fact you should know everything and then the social history presentation was limited to less than ten transcript pages which consisted of ken's mother says that you can step mother and father saying he was a typical kid and a nice boy and they didn't want to see him executed we know that his strategy was also present mental health evidence because he promised th yuri that they would hear how cain's biological mother died at jonestown and they would hear the psychological effect of that on cain he also argued that cain's brain is impaired and then they heard quite literally nothing about that except for the fact that she had died of j and we also know that his strategy was to present substance abuse most of his penalty argument was focused on arguing that came with addicted to cocaine and that was what fueled this crime and quite literally could not control is there for cocaine but no evidence was present that either so we know that wasn't his strategy and then the question becomes did he execute a reasonable investigation in support of what he ultimately presented and i think the answer to that is quite clearly no the red you know there on that my recollection of when you do a capital case when you're the prosecutor you have to notice the other side of everything that you're going to bring through it as an aggravating factor which those were things that they said they were going to bring up so i don't know how the lawyer didn't know about it i mean he didn't know about what i did know about it that is he knew that so that just didn't quite to say i mean the implication of your argument was that he didn't get those records that he knew nothing about those records he clearly had to know that they were going to put him in a segregated factors which the prosecutor would then have to give him copies of that and there was some in lemony there i mean there was some sort of the thing with the court saying that those acts could come in the sacrifice yes they could come in as aggravating and i certainly didn't mean to suggest that he didn't know they existed he happened to be probably have the reports to he i believe he had to report that i mean the forensic care would have to get them that the prosecutor did give him a sheriff's report about the event and the event was that cain had allegedly punch a prison guard and got to a fight with him and then tried to escape and in fact it escaped but in response to that counsel failed to get the records from the reform school where kane was incarcerated at the time and this is exactly the wrong pill a case in one pill of the exact same thing the prosecutor noticed an aggravating factor counsel failed to get the happy file in support of it it failed to investigate it and the supreme court upheld it with ed deference that that was absolutely and reasonable and that is quite literally what happened here i mean first of all the supreme court in williams held that it was deficient before me not to get prior incarceration records but in one public even more because it's an aggravating factor the onus is on council to thoroughly investigate that factor and he failed to do that here like on the four corners of the case that's deficient performance right there and we've met at that had he got those records the level of mitigation in there it's unbelievable they establish a borderline mental retardation at best i mean i would argue mental retardation straight at the rate on his i q tests in that record or in the mentally retarded range including a sixty four at the age of fourteen and at the age of seventeen this man is testing at the second street level and that it's filled with ne psych testing establishing organic brain damage i just remind the court that counsel excel at a higher than expert free trial just to examine can for guilt phase defense expert didn't even know this was a death penalty case and that person recommended getting psych testing that testing had been done years before and established exactly what the expert warned about which was organic brain damage and that brain damage is actually consistent with the brain damage of the supreme court found mitigating in the porter case where it found at would show today we do your honor and that's that's what i was to speaking about it shows the organic brain damage it shows the mental retardation it indicates a chaotic what about negative information misconduct fights  s the records actually not withstanding this one aggravating factor by getting into a guard indicate that he was an excellent and that while while at the adobe mountain school his grades improved not dramatically but but slightly in that he now had a structured environment the reports are overwhelmingly positive you know obviously there is some some aggravation in there i mean he was in there you know for a reason it was confinement but just as in the williams case where the supreme court said look anytime you're going to get confined records i evidence of brain impairment alone the supreme court found stricklin prejudice it is nonetheless an application of strickland so the clearly established federal law is still strickland which would control it all portions of this case just a couple other red flags i'd like to highlight with respect to the penalty phase in addition to the adobe mountain records council also had in its possession so the one hundred eighty two pre sentence report involved a car theft the cane was involved in with his brother that arthur blair in that same file were two reports concerning math at macarthur blair his pre sentence report which indicated that cain stepmother had abused the children her non biological children which include tracey and resented the fact that she had to raise them counsel never looked into that never interviewed macarthur blair in addition it included  hundred four pre sentence report that report indicates that cain's biological mother was hospitalized for psychiatric reasons he never got her medical records never made any attempt to investigate that woman's well being what happened to  her i think it's noteworthy that the court in wigan's found that weakens mother's chronic alcoholism was with a red flag here we have psychiatric hospitalization and there was no investigation done in response just briefly about mental illness and was never examined for purposes the penalty phase there was no psychological work up what we know is that the expert dr donaldson who examined him for the guilt phase rejected it and i social personality disorder so that's too simple a diagnosis for this man something more complicated is going on here and he specifically advised the county council that neuropsychological exam was necessary and needed to be done just talking about the evaluation that he did we're talking about a two hour evaluation maybe three hours at the most he did four tests and he interviewed tracey kane didn't look at any social history records no medical records because number number given to him all he looked at was the d a s file and the d a s investigators reports about what happened with the crime counselors you're very much aware of this is an advocate so we have to look at what the california courts actually did with these very issues yes your honor help us analyze any defect in the california public courts handling of this and well as your honor knows the california supreme court summarily denied this so our burden in the california court was to establish a prime a fashion case had we done that we would have received we should have received an eviden hearing and formal briefing we never got that so we know that the california supreme court denied us on a finding of no profession case these instances alone what would be the last california case that we should be looking at said you mean with respect to this case what would be the the last california decision the denial decision to this petition raising all of these issues right supporting facts was denied and believe it was two thousand so that was left there with that what's the last reasoned decision on these issues if the california supreme court gallon there is no reason decision with respect to the i c penalty claim in california i hate this petition is brought to the california supreme court and they rarely issue recent decisions and only do so after they've issued an order to show cause we didn't get an order to show cause in this case so there has been no reason decision no evidence or hearing i haven't received depositions the ability to subpoena anyone no formal discovery nothing so all that we know is that i have all  anywhere each court has jurisdiction you can go all the way up the ladder i would just like to briefly address prejudice on the icy penalty claim and then quickly move on to ice the guilt if possible because of the very limited presentation and penalty the da was able to argue that they can't had good health he had no mental problems there was no evidence of mental disturbance there after we did what dr donaldson the trial expert suggested and took those results back to him he signed a declaration that was presented to the state court that said suffers from chronic and some significant mental disturbance present throughout his adult life including at the time of the offense and with respect to the social history the da was able to argue to the jury that kane had a good home life had all the advantages now we know that he suffered a physically and emotionally abusive childhood and even the state's expert in the course of our atkins proceedings held that are found that his social history and mental parent impairment clearly contributed to his present situation finally with respect to substance abuse we know that the substance abuse combined with canes mental impairments it according to our expert declarations which have gone  rebutted clearly contributed to the criminal conduct like to move on to i see guilt unless the court had other questions about probably wasn't there computing evidence introduced with respect to mental functioning and the  the state court was not persuaded by the challenge there was competing evidence with introduced with respect to mental retardation yes yes so not with respect  state courts found that there was insufficient evidence of mental retardation of mental retardation itself now right we have challenge that in uncertified claim number four but even if you accept only that cain is borderline mentally retarded the supreme court found that mitigating in both williams and wiggins now we disagree with the state courts opinion but again the question under read for is is what the defect in the state courts determination that would render it unreasonable while the defect so i just want to make sure that we're separating out the atkins claim from the i c penalty claim the i c penalty penalty claim has never been adjudicated and in any kind of re decision about the mental retardation rights and speaking specifically about the atkins ryan the defect there was that the state court found our expert to be not credible because he applied the standard error of measurement in flint a fact to his test that he's ok now the supreme court and the whole decision and also think of it the second excuse me the whole decision and also the brumfield decision said that that was unreasonable that you have to go with psychological norms and you have to go with the measurements in the in the field what the experts do the flynn effect is generally accepted as in as is the standard error of measurement and in a hall the supreme court actually found it was unreasonable to foreclose mental retardation when someone tested above a seventy i agree that keynes i q scores do fluctuate but i will say that at the age of age of fourteen he did test at a sixty four which is significantly below average intelligence within the mentally retarded range and the adobe mountain records do with stablish adaptive deficit the functions adept at data deficit dysfunction in all three zones conceptual social and practical you know so you're down about four and a half minutes you may wish to reserve or can i think of well if that's right thank you and you may do so we'll hear from the state it please the court good morning i'm kim marin's deputy attorney general appearing on behalf of respondent appellee the warden terms but with regard to the notice issue there was no ambush by the prosecutor here the original complaint charged attempted rape murder as a special circumstance allegation the subsequent informations use the language of rape within the meaning of  the point to which in itself states either the completed offense or an attempt of the offense five days prior to closing argument before the defense had even presented its case the prosecutor submitted jury and proposed jury instructions on friday april fifteenth the jury was in recess until the following tuesday on the following monday defense counsel move for production of foot prints samples from mr al b s who was also alleged to be present at the scene and this is because there was evidence of bloody footprints that could not be good tributed to mr cain on tuesday the party on tuesday april nineteenth the parties conferred regarding jury instructions the defense also called two witnesses that day on wednesday the defense called one witness and then both parties presented their closing argument so the defense had from the previous friday when defense counsel received the proposed jury instructions through the following wednesday had ample notice to present a defense to attempted rape to the attempted rape murder allegation the defense did offer a defense to attempted rape based on the evidence he could not argue with any credibility to the jury that no attempted rape occurred based on the crime scene there was evidence that a sexual assault occurred mrs garrett was the evidence that tied it to mr k well there were hairs found at the scene that matched him he stated in his interview with the police that there were three other individuals present but the hairs didn't match the other individuals one of those hairs was a pubic hair so clearly something happened he couldn't stand up and say well there was no attempted rape what he could do was argue that yes his client was there his client was a bad guy he went in to steal but he didn't go in to kill and there were others present it argue that is not right he did argue that and that was the best argument he could make because in order to find any of the special he did not concede the rape he just conceded that that something happened there that there was a sexual assault but he didn't concede that his client was responsible for it he never conceded that his client was responsible in fact he requested jury instructions with regard to mister and mr mendoza and asked the jury to make a finding whether they were also present at the scene and if so then they could discount the testimony of those two individuals and what do you argue it was that that those individuals could have committed the crimes and those individuals had the intent to murder and his client was just there just along for the ride and that he only intended to steal  and this is what mr cain told the police during the interrogation that was the best argument he could make because if the jury believe that mr cain didn't have the intent to kill then it had to find the special all of the special circumstance allegations not true and if he made a specific argument to attempted rape there are still other special circumstances that he needed to address and only one was required to move to the penalty phase so it wasn't ineffective assistance for him to make this argument it was a it was a reasonable argument given that interview statement that mr cain made to the police also mr cain did admit that he went into the house to steal to be fair during the  asked about the morning after the murders and what happened that morning mr kane made a statement that he was in there looking for money it's unclear if mr cain was speaking about the night of the murders or the morning after because he kept flip flopping back and forth between the night before and when the murders occurred and then the morning after when they went to clean up the crime scene for example the investigator said what happened that morning and then he said well i didn't kill those people i didn't kill him it was mendoza and packets and the people did concede on appeal that it was error but the issue here there are two different issues whether there was an instructional error and whether that was notice and so if the attempt instruction was omitted it may be considered for purpose as to whether the defense had notice but in this case given the fact that defense counsel acknowledged he was aware that penal code section one ninety point two included language of an temps and given the other jury instructions that included attempt the evidence shows here that he had ample notice counsel yes your honor that is the issue what's your response to opposing counsel's observation that information specifically referenced attempted robbery but did not specifically reference i think it rape well there are two different there is no just of the charges but he's not  not entitled to notice of the prosecution's theory per se and so the calderon case the murders talk ace and also the lopez case support our position that notice of felony murder a notice of felony murder special circumstance in and of itself is sufficient and the reason why the charge why the prosecutor pursued attempted rape is because the defense was successful in showing that there was no print penetration and so as as the case progressed the prosecutor moved from trying to reach a true finding on rape and move to attempted rape because of defense counsel well was that are you saying that they were successful improving wrists now great because of ferret there was a tear that i guess that would be the autopsy doctor said earth someone that examined the body said they might have done it yes the prosecutors witness the medical examiner it believe that he was the one that caused the tear and then the defense counsel defense also presented a witness who concurred and therefore the issue is really whether the act was completed and and that's why the prosecutor changed all i guess it still when you say that they successfully proved that there was no evidence of rape it well i wouldn't say they successfully proved it they just they certainly weakened that charge absolutely and just because the jury reached acquitted him of the rape doesn't mean that it didn't occur it simply means that the prosecutor didn't meet his burden of proof with regard to that element of penetration based on all of the all of the evidence here it wasn't an ambush and there certainly wasn't prosecut misconduct can i take it to that one that one of the uncertified issues has to do with the atkins claim and like other claims it's subject to add  percent to the california supreme court's directions the spirit court held an evidentiary hearing and determined that came was not mentally retarded how is that decision contrary to establish federal law or an unreasonable determination of the facts well it's our position that it was a reasonable determination of the facts but because the issue was uncertified we would be happy to submit additional briefing on the issue i was only prepared to address the sort of fight issues today and and it's our position that until the other issues are certified they're not properly before the court but and i gather from your brief that you didn't address them in the very correct i think it says so  y ok so if if we were to consider it your saying you would need to yes want an opportunity to respond unless we rejected it absolutely and we'd be happy to provide additional points and dorothy's address so you're not prepared to offer a plum in our response to that correct your honor or any of the other arguments that were made on the on certified issues that's correct your honor  it's my understanding and please correct me if i'm wrong but until an issue a certified it's not before the court and therefore the court will have to make an independent determination of whether to certify you know obviously if we were to certify then we would give the state a chance to respond i guess i would say i'm not sure yes it's not a but i'm not sure i would say it's a good idea to say that you don't know anything about them well i'm certainly familiar but but i would hesitate to make an argument without preparing points and authorities based on the law with all due respect and i apologize it's my experience and my office is expensive the court  generally request additional briefing in the event that it's considering the sort of fight issues and but as i say just on that practice i would anticipate an opportunity to prepare those before before making the argument yeah i thought i would think i think that that's correct before a court would certify it you would get that opportunity i'm not sure that i would say it would be wise oral argument prep not to have thought about them remote submit there's some overlap between mental illness and the claim you know that he had brain damage i mean an examination at that point would be made at the hearing and as as far as his ability his cognitive impairment and ability to function and simply submit that there was a full hearing he had an opportunity to present evidence at that point and the california supreme court found it to be insufficient and that finding certainly wasn't doesn't follow that the consideration of the special circumstance at the pound a face was prejudicial no it certainly doesn't based on the sanders case which is fully set for it in the briefing but also because there were two victims here mr galloway there were two separate verdicts for the death penalty so if the court wants to see what the jury would have found if it didn't consider the attempted rape special circumstances all it needs to do is look at the verdict that the jury reached for mr galloway and the jury found that the death penalty was appropriate in his case and also the jury was required to consider the circumstances of the crime as discussed in the sounders case and based on the circumstances of the crime the jury would have considered the evidence of sexual assault so certainly this this was not a substantial or injurious effect on the jury's verdict and for the  having heard the mitigation the evidence f articulate about opposing counsel do you have any deal as to whether or not the ever gets to scrap would have changed the outcome i don't believe that the evidence described would have changed the outcome because mr cain had the presence of mind to return to the scene the following day and clean up the evidence of this so that he knew that his conduct was wrong and he was trying to hide the fact that it occurred by cleaning up fingerprints and then taking evidence and disposing of it and that in of itself shows that he had a full understanding that he needed to hide his conduct and that's what he attempted to do and unless the court has any further questions we would request that the judgment be affirmed thank you counsel thank you for the room you have some reserve time relevant notice is not provided by jury instructions this court's been very clear on that in the god case and the supreme court has been very clear on that call versus arkansas there were let me say what you don't dispute there was about a five day and i think that's right i'm not one hundred percent sure about that i mean if the state's making that representation i'm i'm sure that's accurate well are you saying that i mean defense counsel said he knew so are defendants really understand any of that anyway that's why they have lawyers your honor and i i understand that i can't cite you to a case that specifically says that mr cain had to be personally notified but i will say that cain was offered a life plea before this this case went to trial and had he known that attempted rape was on the table i can't say that wouldn't change something and maybe defense counsel's advice would have been different to him you know i think i think defense counsel would say to him hey listen we have a good defense to rape if they're going to come at you with attempted r counselor just reviewed the police reports he would have had significant evidence of intoxication what came in at the trial was one witness said that cain he had observed can smoke cocaine and another witness said that he had given  later in the evening and caden appeared to be intoxicated appeared to be under the influence of cocaine from the police reports we know that albus would have said can was smoking cocaine all night nonstop smoke so much he was shaking the whole house smelled like cocaine comments w said came was so high on cocaine he was acting crazy mendoza would have said the cane was so high that his eyes were bugged open he was acting three hundred times faster than normal he kept going into a bedroom where he was smoking cocaine and mendoza could smell it he was jones for cocaine is only thought was to get more mr peanut father would have said they came came over to his house at about ten thirty and what tie a guy named sampson would have said that he saw can around eleven o'clock and jane was so intoxicated his eyes were  bloodshot and cain was having trouble making mark pina would have expanded the cane was clearly out of it at twelve thirty when they spoke kane was talking very quickly and he didn't seem to hear or understand things that even the interrogating officers when they interviewed cain a few days later were shocked by his appearance they thought he was on dope and they asked him when was the last time he had fixed we know the effects of cocaine the extreme disinhibition and predisposition to violence are enhanced by alcohol and marijuana and we know that given can specific brain impairments those effects are particularly enhanced by five so the fact the council didn't present at mental state defense when that would have defeated all of the special circumstances including this attempted rape is extremely prejudicial and that's what the this court found and got which was a notice case and also referred to the court refer the court to the be more decision which this court recently where this court recently found ineffective assistance found deficient performance for failing to investigate a mental state defense didn't find prejudice because of the level of premeditation but in this case the prosecutor even conceded there was no premeditation this case was tried purely on a felony murder  theory i do want to just to make sure i didn't say anything misleading there was an evidentiary hearing in district court i'm sorry in the state court purely on the atkins issue that was based on a one claim petition that was based on atkins alone atkins is a total defense for the death penalty gets you out a death penalty entirely even if even if and i maintain that this is not the case but even if the california supports your obligation is to establish that findings as a result of that evidentiary hearing were contrary to supreme court law i understand that your honor and you're relying on brown felt ramphele and all versed in florida and i think both of those cases establish the methods that we used were one hundred percent reliable regardless even if you find that cain was not mentally retarded that does not this defeat the fact that he has significant brain impairments and at least borderline mental retardation that the supreme court found with mitigating in both wiccans and williams where they granted full relief for a full penalty