good morning good morning dave please the court i'm michael weinstein from the federal public defender appearing for the petitioner appellant carter your honors as you mentioned this is the first of two appeals for carver today and as the court knows this appeal contains two certified claims and the court has requested supplemental briefing on an additional two given that i have limited time today i would like to focus my comments first on the claims i think could benefit most from argument and those claims are the conflict claim and the ineffective assistance of counsel penalty playing and i am happy to handsomer any questions a court has about the other claims to but i would like to start with those and i'll keep my eye on the clock but i would like to reserve six minutes for a time right so beginning with the conflict claim this claim really arises at the intersection of two different rights that are both foundational and fundamental to our criminal justice system and that's the right to conflict free counsel and the right to testify and what i want to make sure is perfectly clear after today's argument is that the conflict claim actually has two independent bases for two different legal theories either one of which leads to an independent reason to grant heaviest relief the first three focuses on the trial judge and asked did he adequately inquire into a conflict as brought to his attention well let me stop you here because you've repeated the word conflict multiple times but in fact we're not talking about a conflict of interest  personal interest different from your clients the argument is the two of them disagreed as to strategy i'm not sure how that comes under the vernacular conflict or conflict free it seems to me this is a fundamental and effective assistance of counsel kleiman should be treated that way so the short answer to i think the this comment your honor is this is not the traditional type of conflict but if were i have any case that uses the conflict language and applies when you have a conflict of interest it's critical for and i see analysis because the prejudice clause is treated very differently you have any authority any any precedent that treats the kind of conflict we have here where there's a disagreement in approach between client and and counsel treats that is a quote conflict the case for purposes of prejudice analysis yes i do know there are two cases i would draw the court's attention to one case is daniel's worse is what for which analyzes whether there was an irreconcilable conflict between the attorney and his client and that was the second theory and i'll just skip to that because that seems to be the court's interest daniels versus woodford also does your second case if you have to can go i'm sorry in the united states versus walker and the reason i want to talk about both of those cases and both those cases dealt with what we're dealing with today which is the intersection of a right to conflict free counsel and the right to testify because in both those cases the conflict according to this court was that the defense attorney was overriding his client's desire to testify that's what happened in united states versus walker and that's exactly what happened in daniel's verses  now to be clear we only get there though if we first analyze this claim under twenty two fifty four d two and what we have to do is show an unreasonable determination of the facts and one of the key issues for our conflict claim is whether carter insisted on testifying and i think the records pretty clear that he was consistent and unwavering in his desire to testify we had the first mars in hearing that was held during the guilt phase and during that mars and hearing gillingham told the court that his lawyer that his client and phatic lee disagreed with his strategy to rest without presenting any witnesses and then at the second mars and hearing of the second mars and hearing gillingham admitted that he had forgotten to tell the court that by resting without presenting any witnesses he was interfering with his client's right to testify and then that's what makes this case similar to daniel's verses woodford and united states vs walker counsel in gangs person is what was the nature of the conflict the nature of the conflict was both a conflict over whether the client was going to testify and how to litigate the rest of the case wasn't our typical conflict case where there was an inability to communicate and a loss t loss of trust in that case well that was part of the extent of conflict analysis at this court did there and just to be clear there is where is the language in indian ules that discusses the conflict about the fended being able to testify what language in there are you relying upon to support your position that in this case is similar to the case we have today i don't have a case right if i may your honor i'd be happy to refer to it during to tell you exactly at the time was looking in there and i don't see where that was a pivotal issue in the case and that was one of the affects of the conflict between the attorney and his client all right i'll wait for you to find the precise language and give it to me when you return thank you i'd be happy to but also to be clear there was a lot of trust in this case gillingham in his declaration admits that because there was an irreconcilable conflict between him and his client he was unable to build rapport with his client he was unable to gain the trust from his client and just like in daniel that impeded his ability to adequately investigate the penalty phase counselor either of those cases supreme court cases conflict we can rely on circuit law so long as we first demonstrate that there's an unreasonable determination of the facts because once we demonstrate that then the court can turn to de novo review and under de novo review it can consult its own precedence and so it's so with the direct appeal cases that we cite ordinarily in at the case those don't matter unless you can diverse demonstrate that there's a reasonable determination of fact and what was the unreasonable determination of facts that underpin show argument right so the california supreme court in its direct appeal opinion said that carter never insisted on testifying in the absence of any other evidence being presented and i think it's really difficult to square that determination with what was said at the two mars and hearings but also what was said at the post verdict i think what the california supreme court said was that carter remained silent while his while his lawyer was was was speaking never said a word to the to the court didn't contradict his lawyer so that his lawyers representations that the court was willing to assume were you know accurately represented the tension between the two and the tension was obvious to the trial court it wasn't it wasn't disguised so what's what's unreasonable about those findings when when carter sits mute and he certainly was a you know an otherwise a vocal vocal guy who was certainly willing to stand up and and shout about things that were bothering him well yes i know about that your honor he was willing to bring things to his attorney's attention and at the post verdict hearing he explained so to his attorney exactly why he remained silent in court because his attorney had told him consistent with ordinary courtroom protocols that when we get into court i do the speaking and you stay silent unless a judge ask you a question court explained and noone yes versus mueller in that situation it's unreasonable to expect a defendant to stand up in court and vindicate for themselves when their lawyer standing right next to it but what the but the california supreme court said that carter never is that second mars and hearing where gillingham said that by resting without calling any witnesses i was impeding my client's ability to testify and then at the post verdict hearing this is what's really the question though becomes was i your client's desire to testify even if other witnesses were not called in as that's what the california supreme court paused on and said it wasn't established that he wanted to testify even in that circumstance the statement to me makes it sound like coun recognizes the link between the two i'm not calling other witnesses that impeded his client's ability to testify his client surely could have testified without other witnesses but the california supreme court concluded that he had that's not the course he chose to take right and again i think it's really difficult to square that with the post verdict testimony because what was said at the post very test my question was put to gillingham carter's lead attorney and it was did your client want to present a defense and testify and he said yes he did he didn't condition the right to testify on the presentation of any other evidence and in fact at that first margin hearing gillingham said that his client and phatak lee disagreed with the decision to rest without presenting any witnesses including carter and at the post verdict hearing he offered consistent corroborative testimony because he said that when he told carter that he wasn't going to testify carter was in full disagreement that's the testimony from the post verdict hearing and for that reason i think it's really difficult to say that carter's testimony was dependent on the presentation of any other witnesses it was just supposed to be exercised in conjunction with that as well so i don't understand the difference there the question is is it unreasonable for the california supreme court to have concluded a factual matter that carter wanted to testify whether or not other witnesses were called whether or not another broader defense was put up by giving him and the california supreme court said is it you carver's desire to testify was linked to a broader defense and if there wasn't going to be a broader defense than carter ceded to the approach of not testifying himself what evidence breaks that  between a broader defense and other testimony and carter's desire to testimony that mars and hearings that were being held during the guilt phase were carter was complaining about the fact that his attorney was litigating in a case or litigate the case in a way that he disagreed with the if there was some evidence in the record your honor that said carter want to testify only if there was other evidence presented then i would not be up your argument there was no you find another argument but you had to flip that what is it that leads us to conclude that the california courts determination that there was a connection between the two was on a reasonable because there are inferring and making assumptions based on a record that doesn't support those assumptions we well that's that's where i pause because i'm not sure what you've cited supports the proposition you've just stated it seems to me that it's offered up to the trial court as a package that is that gillingham acknowledges that carter was unhappy with the defense i don't see anything the gillingham said that made it clear that carter wanted to testify regardless of whether there was a broader defense and that's what led the california supreme court to conclude that carter's testimony and a broader defense with other witnesses were linked that there was nothing that forced the conclusion and i don't see anything that forces the conclusion that carter's desire to testify was independent of whether a broader defense was submitted if you could prove that then the california determination of fact is unreasonable but i haven't figured out what it is that makes me or should lead me to conclude that there's not a connection between those two pieces right the again i would just direct the course attention to the post verdict testimony because the poster testimony both gillingham and carter said that carter wanted to testify carter even went a little bit forward took it one step more he said that he felt it was necessary to testify if you know if it was necessary to testify then i'm not sure why he would have these two mars and hearings to bring to the court's attention the fact that he wasn't being allowed to testify but at the margin hearing is an inquiry about the relationship with counsel correct and if at some point if carter doesn't speak up to say that's right your honor i not only wanted to testify but if this guy's not going to let me i don't want to i don't want him sitting next to me anymore and he never he never said that it by by sitting by sitting mute it leaves the trial judge with the understanding that gillingham has correctly and represented this and that and that he doesn't have any objections and that's basically what the california supreme court says if he doesn't speak up how are we supposed to know that there's anything different going on here well again your honor i mean this court was very clear in his versus mueller that you don't expect a defendant to speak up in court when his attorney can represent then if you don't expect him to up in court even if their attorneys have told them ahead of time not to do well so your honor what we do have here that i don't see in all my cases is we do have gillingham saying at the post verdict testimony i instructed my client to be quiet and that carter agreed with that he said i was told i'm not supposed to speak but i want to i want to bring this all back because this gets we deviated digress from the first theory and i think that the reason why the record might be a little bit messy right now is because the trial court didn't do what it was supposed to do and that was adequately inquire into a conflict so you have these marzan hearings that are being asked for in the middle of the guilt phase as this court recognizes shell versus what if the very essence of the hearing is that the attorney client relationship is falling short of sixth amendment standards and if you practice in california state court you know that when you say the word mars and that's code for clear the court room because we have a serious problem and what happened in this case is that you have this first mars and that was held the court can ask any substantive questions to find out exactly how carter was feeling whether he had was still able to trust his attorney whether he was able to communicate his attorney whether there was a breakdown in the relationship and then here's the thing that i think is most important is that the second mar hearing the judge learns at gillingham was not accurately representing carter's views because he said i neglected to mention at the first that by resting without presenting any witnesses carter that was preventing carter from testifying and both under california law and federal law the judge had a duty to inquire because you can't figure out if this conflict is making the relationship fall short of six amendment questions unless you ask targeted questions to find out exactly what is going on between the attorney and his client verdict hearing gillingham said that the synthesis of the three margin hearings the first three margin hearings was supposed to be mentioned at the first and he failed to mention at the first that carter wanted to testify i mentioned at first that carter wanted a new attorney so what that shows is that gillingham was failing his client over and over and over and again this all could have been resolved if the court had just done what it was supposed to do which is ask questions to the defendant and put those questions to him come like right now your honor i have the brief i'm looking at and that's why i'm asking the question because i didn't see this argument develop there it wasn't developed as well as it could have been because in a way the irreconcilable conflict test has three parts it has an x you inquire to the extent of  conflict between the attorney and his client the adequacy of the inquiry and then the timeliness of the request for substitution of counsel and so we collapsed this first theory that's dealing with holloway and to that second prong of the irreconcilable conflict test i realized when i was writing my reply brief that that was a messy way of presenting these arguments to the court but that being said it is in the opening brief and as we point and i rarely will you well i would be happy to direct the court's attention to exactly where it is  but i see that i'm twenty minutes into this argument and i was hoping to reserve six minutes the court has and i have any questions about this i'd like to move on to ineffective assistance of counsel a penalty all right ok so the in effect is of assistance of counsel at penalty flame is really a classic case about an attorney failing to follow up on relevant leads that would have led to the discovery of classic mitigation evidence trial counsel in this case were on notice a few documents that they had gathered and witnesses that they had interviewed that carter had serious mental health issues and that he had a nightmarish child childhood but like the attorneys in wiggins versus smith douglas versus w that he has fetal alcohol syndrome f a s both of which could have offered an explanation for his conduct in this case and they would have discovered evidence of his horrendous childhood he grew up in nome alaska place unlike any other place there's no question that they got evidence of his horrendous childhood but they chose a slightly different strategy which was which was to touch on that on that child without blowing it up and then to emphasize that he had overcome this and therefore he was a redeemable person that he had been a good father that he had tried to be a good husband that he was despondent over the over the divorce of that might be that the plight of of any of us that's a very that's a that's a completely plausible strategy it didn't work here and so now now we're going to think about about why we should have done some other strategy but it's very difficult to see why from the outset we should have known that we had to go after after everything that happened in nome and blow it up as big as we possibly could well but so i think that  life and that that would that would run against him well i don't know if we actually have that in the record yard or what we have in the record is the defense memo from the investigator from the los angeles case and you see him doing a really weird about face in the memo where he says i talked to gerry carter he's essentially says that there is no abuse here and so we should just focus on the adult hood of carter and why i think that's really really troubling is because counsel had in their possession a lot of documents that that there was really really horrible abuse here they had documents that said that carter had been chained for weeks at a time that his parents constantly change him when they went out socializing and here's another one is that when he was fifteen years old he was going to the juvenile court system and he was evaluated by a probation officer and the probation officer looked at his home life and said it was very neurotic very poor and recommended that the court take the extreme measure of taking carter out of his home and placing him in foster care and so counsel did what they were supposed to they went up to nome and they started investigating this and they actually receive some corroboration of it jerry testified about a single incident chaining and then they talked to cheryl status and she testified or she told them about a different instance but there's no indication record that they expand their search beyond that and then even when they did present this evidence your honor they presented it almost as discipline it wasn't so much that the parents were even abusing him and you look at the prosecutor's argument the prosecutor said there was no abuse here this is a case the death penalty yeah but i'm strict in the course of that's less than a preponderance of the standard just to be clear ok but i do want to say that even with that standard with the evidence that was in the record how can you make that right because i think you have to cumulate all the missing mitigation evidence and it wasn't just the evidence about the china weigh that against the evidence that was presumed to support the death penalty correct i'm sorry i didn't quite understand way that against the evidence that was in the record to support the  exactly and i think that the the child abuse you know him being treated like a sled dog by his father being chained to tables and cabinet posts and beds at all times of being forced to eat food and water and drink water off the floor that would've been a pretty effective counterweight to something aggravated but so would have the brain damage at this trial the the attorney says in his declaration that he suspected brain damage but he didn't follow his expert's advice to get additional testing that additional testing would have led to the discovery that carter has brain damage and f a s both of which affect his frontal lobe and the reason why that's so important is because the frontal lobe controls the executive functions of a person's brain those executive functions control person's ability to regulate and inhibit their behavior their emotions and their impulses and when they're not functioning well a person lacks the normal inhibitions that someone else does so that substantially impairs their ability to conform their conduct to the law and that is a that is a statutory factor a mitigating factor under california law and if someone is unable to substantially conform their behavior to the law that lessens their moral culpability none of this evidence was probably going to make the jury like carter any more but it would have helped him understand exactly what happened in this case when you have a twenty eight year old man who had no by that history he had a couple of felony burglaries when he was an early twenties and otherwise lived a rather under markable life and then you have two or three weeks where extreme abandonment extreme the girl act and then who was consuming a lot of alcohol and consuming a lot of cocaine and this was having a really really negative impact on his on his brain so when you take all of that together that could be looked at two different ways the fact that he acted appropriately for so many years could be used against the argument that that he was acting you know under the influence of fetal alcohol syndrome or some other phenomenon because he had acted irrationally for so many years why wouldn't it be reasonable for the california supreme court to conclude that that evidence could have gone both way i think what it really comes down to is that you see that during the months that were preceding these crimes carter was experiencing things that he had never experienced before divorce his two children were being taken from him there's no indication the record that he was consuming a lot of alcohol or cocaine during before all that happened and so what you see is his life to start spiraling out of control and again it's the brain damage in connection with the consumption of alcohol with consumption of cocaine and then with all these experiences of panamint and neglect that he's that he was experiencing at that time and so i think all of that would have would have been a very effective counterweight your honor i saw him out of time thank you counsel i'll just remind  that when you returned you were going to point out two things the language in the dalles case that this goes to feel you to call the dippin as a witness and the opening brief discussion of failure of the trial judge to conduct an adequate incurring ok thank you very much  good morning your honor may please the court any fathoming frazier deputy attorney general on behalf of the people the california supreme court reasonably determined that carter six amendment rights were not violated by virtue of a conflict between him and his counsel over this strategy to pursue and trial a tactical disagreement about strategy does not create a sufficient conflict as to warrant substitution of counsel carter waiver can there can be a complete breakdown in communications because they have different ideas certainly in some cases in this case there was not that conflict centered over the strategy to pursue in the guilt  carter was a sophisticated defendant he had already conflict off one counsel his initial counsel he had substituted because of a conflict over defense strategy he knew how to do it he knew what words to say to achieve that goal with mr gillingham he never requested mr gillingham be substituted he wanted to make the record clear and mr gillingham did make the record clear that they had a conflict over strategy and that strategy was gillingham wanted to focus on the penalty phase and not present a full blown defense to the kill charges or what's your response to opposing counsel's representation that the conflict was whether over whether the defendant would testify and that he didn't make that known to the court because he was told not to talk at the court hearings which are response he a few things one is he in the post for ticked hearings he testified very clearly that he the representations made by gillingham in those four hearings were accurate representations he never testified that no that was not accurate i just wanted to testify gillingham made it very clear that carter wanted to testify and that too after presenting the defense during that he had the first hearing where he explained that they had a conflict the next day  explain they had a conflict but the next day or later that day killing him said i wanted to put a few things on the record that carter told me i missed in that hearing so carter clearly told gilling what he wanted him to represent to the court he said there were a few witnesses he wanted to other witnesses and he wanted to testify so gillingham made that clear to the court that the conflict was that he wanted to present a defense and testify the post verdict hearings gillingham said very clearly by not going in on the witnesses and also precluded the potential of mr carter testifying based on however what those witnesses would have testified to and the effect of their testimony when defendant testified post hearing he said i told him he wanted to call witnesses put on a defense and testify so even in the post for it appearing carter never said i wanted to testify were guard lists of what gillingham did he never said gillingham misrepresented what he had stated in the marston hearing even in that hearing it was always clear that carter's wanting to testify was based on gillingham putting on a full blown defense the california supreme court therefore was reasonable and making that determination any other determination is just not reasonable and can't be squared with the facts the gillingham also in his declaration said that he anticipated th carter would testify on his own behalf after presentation of professor and defense witnesses so he consistently gillingham consistently stated that it was tied to presenting a guilt phase defen and that was a defense strategy that was the gillingham made that wasn't a basis for removal of counsel moreover carter nor gillingham ever requested the gillingham be removed and again carter knew how to do that since he had previously requested and been granted a new counsel after the guilt phase gillingham stated to the court in one of these hearings carter has requested you appoint an attorney rowan klein for the purposes of a post verdict motion not for the penalty phase so again carter knew how to request counsel he requested counsel for a specific purpose and gillingham said at that point i'm opposed to it and the court didn't granted at that point so carders it's clear throughout the record that carter roux gillingham let his needs and request be met he was very vocal in that manner through gillingham and there's no reason why inference from the record that he his needs and desires were not adequately represented by gilling even in the post conviction hearing well on some level we know that there was a disagreement that carter wanted to put on a guilt phase defense and gillingham did not do that it's read through so so we know that there was as a bit sensitive because be a disagreement between the two of them you know last year in mccoy the supreme court said that counsel doesn't have the power to deny a guilt phase defense now mccoy isn't directly a political boy here but the concept there is one that seems to speak to this kind of situation b if there's no doubt there was a conflict between carter and gillingham about how to present the guilt  united states supreme court precedent was at the time the california supreme court issued its determination more of it is distinguishable because in mccoy the defendant wanted to testify did in fact testify and in spite of him testifying to an alibi his counsel got up and admitted that he committed the crimes here those are just very different facts here killing him never the gilling never conceded guilt in the manner of he didn't get up and say my client committed these crimes he never admitted that the he argued in closing argument that the prosecution had a burden of proof that they couldn't be swayed by sympathy that he urged the jurors not to defer to other jurors so in this case gillingham did put the prosecution to its burden of proof unlike in mccoy and this is in florida versus nixon which was that the california supreme court relied on the court there said it is sometimes the best strategy in a case like this where the guilt was overwhelming to focus on the penalty phase and save your credibility by not contesting issues that were would be harmful to you in the penalty phase when carter was talking carter discussed in the post conviction motion when carter said what when they toss talk about what witnesses carter want to testify he wanted to have have come testified he wanted some witnesses this for example he said he wanted to have the a pathologist come and testify that one of the victims misguide three had consensual sex with him and said of was rape it's just that is not a credible defense to put on in front of a jury and so mr gillingham reasonably made that determination that those were not the kind of witnesses that you would want to call if you want to focus more on the penalty phase so it was a and i don't think anybody's arguing with the logic  gillingham approach and and counsel hasn't tried to mean that made an argument that there was prejudice because maybe some juror might have been swayed by carter testifying but there's no no attempt to offer okoye errant defense to carter could have best offered up in the field phase so i want to be clear i don't disagree with anything you just said one of the things that and again mccoy doesn't directly apply it recognizes mccoy's testimony would have been madness he didn't have a defense to offer but the court wound up saying that's his decision to make should we be influenced by the same concern here well in mccoy the defendant wanted to testify regardless of whether the there was a defense and did in fact testify in court in spite of the fact there was no other defense offered he's testified to a alibi that was not a very credible alibi and defense counsel didn't even argue that it was credible so that's a very different circumstance so while the principle can still be applied it's just it isn't factually similar and again that wasn't supreme court precedent at the time the california supreme court determined that there was no claim council in your view what does the record show regarding the defendant's desire to testify express a desire to testify with the record shows that he never expressed a desire to testify independent of presenting a full blown guilt defense it was always conditioned on presenting a defense and testifying he was very clear and his testimony post conviction said i told him i wanted to call witnesses put on a defense and testify and that's a direct quote from carter when he testified post hearing so the record is very clear that he never requested to testify independent of presenting a defense and therefore the california supreme court recently made that determination with regards if the court has no further questions on the conflict issue i can move to the ineffective assistance of counsel claim and in that claim here we have lawyers who have done a very thorough investigation they went to alaska numerous times their investigator went to alaska they had two investigators elise go to alaska one of them went three times they interviewed numerous witnesses for in the range of forty and after that extensive investigation made a tactical decision casey cohen was the investigator and he said he had heard rumors that carter was abused those same what counsel is arguing are sufficient if you look at what the evidence that was presented was and you look at the post conviction declarations the postcondition victualled declarations are not based on firsthand information it's primarily based on rumors for example counsel said that carter was forced to eat like a dog off the floor if you look at the actual evidence one of the witnesses who in fact did testify bertha and soon stated that she once went to their house and jerry was on the table and carter was sitting on the floor eating it didn't say he was eating food off the floor or drinking water in a bowl off the floor as carter would have you believe and moreover that witness actually testified in the los angeles trial she was specifically asked was jerry carter treated worse than or was dean carter treated worse than jerry carter so the representation are really much more they're really based on rumor and speculation more than concrete testimony council one is there in the record regarding the investigation of fetal alcohol syndrome and brain damage there was we don't have any information that the trial council was aware of fetal alcohol syndrome however we do know that defense counsel consulted mental health professionals and after consultation with mental health professionals elected not to present a mental health defense based on the post conviction declarations it states that that was and feel i'll call syndrome was an emerging field and it actually  went one of the declaration states there wasn't they didn't have the criteria two until two thousand and four longer than in this trial much after this trial and that in fact at the time even by the post conviction declarations there was fetal alcohol diagnoses in children but it hadn't quite yet been extrapolated to adults so it's hard to far fall council who did a thorough investigation who did not present a theory of defense that was not fully developed at the time and again that investigation there's no indication that these were not tactical decisions based after a thorough investigation what about the brain damage well with that investigation it was undertaken in regard to brain damage based on the evidence that was known to the defense counsel it's unclear what was known about the brain damage prior to from the defense attorneys at the time of trial what we do know is they consulted mental health professionals and there are no declarations in the record what their mental health professionals had discovered that was not presented well i would a mental health professionals be the ones that would opine about brain damage certainly but where they physicians that is not clear from the record that was never that counsel did not put in any of those declarations of what those mental health professionals determined or evaluated however what is known is there are reports in the file from before he carter committed these heinous crimes that he was a classic sociopathic personality so based on the fact there is an investigation we have these crimes that he's committed a reasonable inference is that counsel had information and elected not to present a mental impairment defense based on the nature of the crimes counsel talked about how brain the factor in brain damage as it affects executive functioning this was a defendant who had a extremely sophisticated meticulous crime spree where he went up and down the coast raping women he did a lot he took a lot of actions that showed he was functioning very well he wiped down wine glasses to make sure his prints were not on him he took a car from oakland drove it to drove it all the way to l a after killing the oakland victim and taken some her belongings took the victim's car from l a and moved it a block and a half away from her house to avoid detection then stalled killed three women in los angeles after raping two of put their in one of the apartments put their bodies in a closet stacked them up in a closet if i'm there was a phone call made and you could fairly assume was the defendant to her place of employment stating susan knowles will not be in to work today she got into a car accident clearly that was someone who was trying to throw off her employer so they wouldn't detect that she was not coming into work then he drove that car stole that car and drove to san diego and killed get and raped yet another unsuspecting victim got her a t m password had it in as pocket and then took as much money as he could out of her a t m this is the man he had belongings from every one of those women this isn't me and who use it who has had a very sophisticated crime spree and a argument about his lack of executive functioning would not have bode well so it clearly is it was a tactical decision by defense counsel not to present that kind of evidence that would not would have allowed the prosecutor to bring out all those facts yet again in cross examining those witnesses of whether those highly sophisticated actions were of someone who was lacking executive function or impulse control this was not a crime where he went into a some place and had a complete mental lapse this was over a long period of time showing great sophistication so it's entirely reasonable that defense counsel would make a tactical decision not to present that evidence similarly that goes to the prejudice of given the sophistication of his crimes the fact that he had brain damage and fetal alcohol syndrome would not be the kind of evidence that would have tipped the balance in favor of the defendant this jury had already convicted the defendant of the three murders and sex crimes and all the special circumstances and then heard about a brutal rape that he had committed before that where he had h this woman at knifepoint and wait for for hours on end it just is hard to reconcile with this mental health evidence in terms of the i want to go back to something else and that is the tactical decision not to present more child abuse council states it was a about face by the defense not to present this evidence but if you look at the casey cohen's interview of gerry carter which i believe was at the expo excerpts of record at nine forty four jury casey cohen talks to jerry and gets in jerry would be in the best position to know about the abuse he was there he lived in the home he interviewed him and in that he said based on the talking to jerry i don't think it would be a good idea to pursue this type of evidence he said and i want to get a quote real quick he said that there was no history of child abuse so significant that it would tie in with the general theory as to why dean ends up murdering someone instead they opted to have him talk about the good qualities of carter and how his mother was neglectful and did not talk about them or offer any support so if you look at that defense investigator report he's the one who's interviewing jerry he's assessing his credibility and advising counsel on whether that would be a credible defense and that clearly shows that it was a tactical decision not to focus on the child abuse and in spite of that they did put on enough evidence of child abuse to make carter somewhat sympathetic i thought it was interesting when in responding to a question of this court about this medicaid medicaid potential mitigation evidence and how he could have a life where he didn't have violence up until this point and counsel described well that's because he was going through this divorce and he'd been ok and he spiraled out of control well that's interesting because that's exactly what trial counsel offered to focus on that is a sympathetic mitigating material that he was a person worthy of sparing has a life in spite of this because before that he had been a he had a period of time where he was successful he was a good camera man and that was a reasonable mitigation strategy for the defense so not only can he not show deficient performance he can't show prejudice and counsel if we were to disagree with you on the penalty on the penalty portion of this what does the effect of the governor's declaration on the case well that order from the governor did not affect the states it does not affect current convictions and sentences so at this point the attorney general's office cannot identify a direct impact the executive order may have this we would all week so if we thought if we thought there was error in the penalty phase that the state wants to go back and and we were just a throw back and we do this anyway well that would be up to the district attorney's office so if there was if and i apologize i didn't track your question which is my fault but if if that if this court were to find that there weren't that the penalty phase was reversed that would go back to the district attorney's office and the district attorney trannies office would make that determination of whether they would try it if they didn't retry what would be the consequences if it did not retry it right if the d a s office elected not to retry the penalty phase and what would happen is that this go back to  i don't believe i do believe it have to i don't believe it automatically revert although i think with the special circumstances alleged that that would that trial judge would not have discretion to do anything other than a life without parole sen but i do think that again the california supreme court reasonably determined that the that there was not ineffective assistance counsel in the penalty phase and that is it was a reasonable determination the evidence as i stated was based on rumors speculation and the trial counsel made tactical reasonable decisions and there so counsel was not deficient nor can carter show prejudice also did you read opposing counsel's opening brief this fairly raising the issue of the feel you of the trial judge to conduct an adequate mars inquiry what i recall from the opening brief is that it stated that there are three factors that this court looks at in determining whether the inquiry in a marson type hearing is adequate or is whether there are three factors to look at in determining the viability of a martian claim and what was the extent of the conflict and i did believe he mentioned the the conflict and the third one was the timeliness however he based that that three part test it was based on a night circuit case not united states supreme court precedents so i don't i believe the response in our brief was that we can look at those factors as being somewhat persuasive however those aren't three factors that the united states supreme court has determined to evaluate and since counsel never know the counsel nor carter ever specifically requested his attorney be removed it really doesn't we don't even get into that inquiry however if we were the trial judges inquiry was adequate there's no specific questions that need to be asked and it was clear that gillingham wanted to put certain things on the record and and did so but there was no follow up that needed to be done he aired his complaints and there wasn't anything that's required counsel talked counsel never stated what the conflict was they said we have a conflict and the court took nine months to remove the counsel and then an inexperienced attorney was appointed and there was just never any inquiry into the conflict but here the conflict was adequately aired and even at this point and juncture there's no indication that that there's no that discrepancy on what the conflict was the conflict was that wanted to treat it as a penalty phase or a penalty case and not contest guilt and carter wanted to present a full blown guilt defense and testify listen and response to your requests i would direct the court's attention to four twenty eight f third at eleven ninety one and eleven ninety nine that's the daniels versus woodford case eleven ninety one talks about how daniels appeared willing to testify and then eleven one hundred nine the this court explained that the conflict prevented the jury from ever hearing his testimony as for whether our argument was  properly presented in our opening brief way to say anything about a trial judge's duty to inquire no no but that's that goes towards the extent of the conflict not what the adequacy of the inquiry is as for whether the argument about the failure of the trial court to adequately inquire whether that was an unreasonable application of holloway wheat and what those are all through three supreme court cases so council that's in the statement of fact say eleven witness is a conflict he told me daniels and then i ask you what's the specific language you're counting on in there well again and it goes towards how did the conflict result in a breakdown of the attorney client relationship and that's what daniels explained it walks through how it affected the guilt phase or walks through how it also affected the penalty phase as for your other question your honor the second on page twenty eight of our opening brief the summary of argument the first  paragraph clearly lays out that we are arguing that the trial court failed to adequately inquire again direct the court's attention to page thirty two over our opening brief which cites holloway and then twenty eight of the opening brief yes which is our summary of argument the paragraph that begins with the trial court then also on page thirty eight of our actual argument we explained how there was an unreasonable application of holloway again we could've spaces out better and presented were a lot of arguments made about the penalty phase i c claim there's some overlap between this case and the next case and so i would like to deal with that there but i will point out that again it puts the cart before the horse to say that the attorney made a reasonable decision not to present any brain damage evidence when he never discovered the brain damage evidence and he even admits in his declaration this is that page nine sixty that he suspected organic brain damage and he was told that he should conduct additional testing and he never conducted those testing but opposing counsel that we need to do more and he didn't do more thank you counsel thank you both counsel case number thirteen dash nine nine zero zero three is submitted for decision by the court we will now your argument in case number thirteen dash nine nine zero zero