delay prejudiced the appellant in his ability to mount a defense the test as the court is aware was that is the clearly established federal law as announced by the united states supreme court is united states versus the vasco which states that there is a balancing to take place between the established prejudiced to the defendant in the ability to mount a defense versus the justification for that delay by the state in this case there was a pretrial hearing in which the state trial court had they have an injury hearing on the issue of prejudice and found actual prejudice to warrant requiring the state to justify the fourteen years of delay what was the actual prejudice the actual prejudice as announced by the court in his written this isn't was the faded memories of witnesses and i could give that one exam would always be the case wanted well it may well be over a fourteen year period but we have specific examples of prejudice from quote the faded memories of prosecution witnesses where one statement that they'd made say in one nine hundred ninety six they say which is not incriminatory but by the time they get to trial fourteen years later they're saying i don't recall that that they had killed the victim in this case and handed her a bag of jewelry that's the statement she made two years later within a couple of weeks she recanted that statement she  in the detectives no it's as no she withdraws the statement that he came to the doorstep on the day of the homicide and she says oh he told me this later that was a crucial factor but at trial she didn't remember any of that and the officer said well i don't remember that specifically i see it's written down in my notes but i don't remember jim ember while making the statement or recanting she did not remember making the statement or recan she didn't remember making the statement at all that that she withdrew the statement ok i'm trying i don't know what she recalled the doorstep statement she didn't recall telling the officer later as reflected in his notes that she withdrew that statement that appellant never said that on that date that's a rather important factor prejudicing the appellate from faded memories that's just one example there are that particular witness got on the witness stand who is the major witness against appellant and said i don't remember about one hundred times i've chronicled that in the braves to my thinking yesterday and yes faded memory and inconsistency afterwards either and so they interview him the next day he gives a detailed statement of where he was the day of the of the homicide of course having nothing to do with a homicide but he gives a detailed statement they don't investigate one word of his statement but fourteen years later they they charge him and statements that he made on that date which could have been exonerating of course were lost in the sands of time because fourteen years later he couldn't prove that he went to johnny's restaurant for breakfast or to a particular nissan dealer as he said to these officers and they even admit yes we should have checked what he said immediately they didn't check it out at all and thus he gives a statement and walks out and then fourteen years later he's he's charged but he's seventeen years old he doesn't have the wherewithal so what would happen if you ingest it if they just charge within two years or three years that's still a problem isn't it i mean that the that what you describe the officers failure to follow up on historian immediately is a problem sort of no matter when it happens if they don't do it if they don't do it immediately and it's exacerbated after fourteen years of time but i would i would concede that they didn't have to charge until monica only thing detective serino tele did does of any substance is he reinterviews monica in the year two thousand and he had the case from one nine hundred ninety eight to two thousand and five he admits on the stand he took a passive approach to this investigation perhaps he should have done more these are his words but he was taken off the archive team and didn't even have access to information how is that a justification for this delay that that utterly fails to justify mind if i just commend to the court's attention the the xor on pages one zero one one zero two where the trial court states in writing why he is denying this motion he says yes there then slight to moderate prejudice to the defender from this delay the justification by the people is minimal but when i factor in the seriousness of the case and the people's desire to have these types of cases tried then you lose mr defendant i find no reason to dismiss the case when those latter two factors are not part of the lavasa test that's what the trial court relied on it's in black and white and it no we're smithing by the court of appeal to deem that surplusage because it's embedded in his decision so then we get to the court of appeal and they say they make no independent findings of either prejudice or the reason for delay they say that's not our function and they don't do it they find no abuse of discretion but if the trial court used the wrong legal standard that is as a matter of law but the the the  quotes the trial court here the trial court makes this one passing reference taking into consideration the seriousness of the crime now is that a violation of clearly stellar supreme court law and if so which case it's a violation  set out the standards of balancing noted law school say you can't take into account into consideration the seriousness of the crime you know what it said was you can't take in the you have to take into consideration circumstances  relevant to the facts what would uphold the california court of appeals in clearly established supreme court law that this was error by the by the trial court well the fact that le vasco says here are is the balance facts related to what i read layer privilege when i read when i read the statement that the trial court made taking into consideration the seriousness of the crime without any elaboration here by the by the trial court i mean that just seems to me that that's that that's subject to a number of interpretations including including that the state doesn't want to sort of willy nilly go after somebody for for murder unless they're confident of their case and that seems like an entirely responsible judgment by the state for waiting until they have till they have furthe into consideration the seriousness of the case and the impact take taken into consideration for what purpose well it's clear the purpose here the court here used it in the hotel and should have won just on the balance that the court  would i guess i'm missing you said it's clear what he used for that's not clear to me so i'd like you to tell me what you think the trial court took into consideration the seriousness of the crime for what purpose well when the court says when taking that prejudice which the court found this is the last line on page one to one against the people's justification which the court found them all and then taking into consideration the seriousness of the offense and the public interest in favor of this type of prosecution well if you take in the seriousness if that's a factor it's always going away in favor of that he must yes still understand what what how what you think he did when he took into consideration the seriousness of the crime well i call it the boat your some on the scale of justice constraint on these kinds of that's prosecutions but i would also point to further up in the order where the court again cites pinney and cites in the balancing this is in the middle paragraph on page one balancing the public interest in favor of prosecution against the defendant in waiting in the wing process the serious of the crime for which the indictment is returned must be given appropriate consideration and my point is that in that in that circumstance it's always going to weigh against the defendant it's like an automatic weight on the scale and in this bail which this court had already established that the people's justification for that delay of let's say twelve years was minimal and that was i think a favorable reading more than it's the deserved against the slight to moderate prejudice to appellant the parent should have went on that on that balancing alone le we know in california state with the longest period in california state with the longest period of delay for murder prosecution has been do we know i don't think there is a resource to establish that  mother mary in case was three years but there was no argument of prejudice in marion because it came up on the pretrial writs of speak the currency case that we've said it was eighteen months  this is different by many degrees from those cases in any one of those three cases they said eighteen months that maybe it was marion saying three years that's significant delay and this we have delay from ninety six to two thousand and eight of over twelve years and during that time that the problem isn't just the delay it's that there are all these leads that they didn't pursue the defendant's statements all of the family leads to say we think this fellow is responsible sell asker or ophelia they don't they don't get off their duffs and go investigate they just felt ok the defendant did it we'll just wait to something falls in our laps and then charge him so they waited me please the court deputy attorney general kristen somerville for respondent happily the state courts rejection of the pre indictment delay issue is neither contrary to norm and reasonable application of clearly established federal law the district court correctly look to the last reason decision the state court of appeals opinion not the trial court's determination when it decided that the court of appeal correctly applied the two step due process balancing test in the vasco when it rejected claim the court of appeal conducted that analysis and it did not consider the seriousness of the crime charged but even if it had or even if the trial court had considered that factor which as the court of appeal noted most favor of the state in that the implication yes and the implication is that the legislature has deemed that there is no statute of limitation for murder and the statute of limitation is the primary protection for a defend wide discretion to lower courts to apply the general due process standards and to specific facts of each individual case so even if the court does examine the seriousness of the crime charge that's not contrary to established federal law and should men cannot point to any united states supreme court case that states that it is improper to consider the seriousness of the crime charged can so i think to look at whether or not the factual determination by the trial court adopted by the court of appeal that there was a continuing investigation was and reasonable determination of the facts particularly troubled by detective scully's testimony a it was the same case in all three points in time what how could they could there possibly have been a continuing investigation and how could that not be an reasonable delay i mean that's you know police out the investigating police officers changed about five times and did nothing other than one of them really interviewed brenda kanya so how could it be reasonable to say there was a continuing investigation during all these periods when nobody was doing anything your honor detective scully testified that in two thousand and eight after he interviewed abdullah and abdullah corroborated view ways testimony it was that that point and then he met with the d a s office it was at that point that he decided the case was strong enough to see for charges to be brought so stating that the case was always the same from ninety six two thousand to two thousand and eight what he meant was view a w and he was there as a witness the day after the murder he was right even in two thousand and eight when detective school we interviewed him multiple times he refused to give up any information it was only after multiple mother to camp coon when she came back so detective will dispute that at trial it was in their dispute about that child she couldn't remember earlier on she stated of course back when she was dating the defendant back and forth stated no he d threaten me yes he threatened me no he didn't send me there but at trial she did testify that that she did threaten her family and and sent her to cannes koon where her father lived so that she detective sara tell us stated that he was looking for evidence and witnesses to corroborate be away he attempted to find her he continued to do computer checks and conduct interviews with former witnesses and he finally found her in two thousand when a computer check revealed where she case interviewed by no family he followed up on new leads he contacted a crime reconstruction expert to see if he could corroborate the ways testimony he interviewed new and old witnesses and he requested d n a testing on a hair that was found in that house bathroom a testing was in its infancy when the crime was committed so there wasn't a lot of that a lot of that sort of testing done so that covers ninety six to ninety seven which shows that there was an ongoing investigation even though the impeached because she had just broken up with and in addition according to her own statement she could have been indicted as and later better react to the fact whereas by the time the government decided to prosecute the statute of limitations had run against her and a long period of time had passed so coming and testifying at trial she can be impeached and one granted she can be prosecuted on the other that's to reach whether the investigative delay outweighs the prejudice because it shows no actual prejudice the only provide speculation that the certain witnesses may have tested testified in a certain way i think that trial court found was actual court found that both sides were prejudiced by fading witness memories but every trial i wouldn't even need needed to go on to the remainder of the analysis we had not found actual prejudice that's correct to the trial court was very thorough in this case but even as the court of appeal decide as the court of appeal correctly stated prejudice is different than actual prejudice and for actual prejudice as live ask it was stated the defendant must come forward with ongoing investigation was a very strong justification for pre indictment de lay and x and also discussed that whether bad faith bad faith would would would be a poor justification so yes but the law school is not very helpful and i situation in explaining what an ongoing investigation is no way to know if you you have a cold case and i don't know it was him the detective got a dozen of them and the detective decided not to do anything about this call case and work on this one who waits three years to do something is that to continu maybe and it may not be but that's not the case here the case never went cold in this case the case was the investigation was always ongoing this case was never shelved investigators continued to look for new leads and the three day they indeed said that at the hearing except the evidence belies that statement given that when they left the case in may of ninety seven there wasn't even an investigator between me and ninety seven  telecoms for the next seven or eight years the only thing he did have any substance was reinterview a witness that already been interviewed that is not a good faith investigation when all of these leads provided primarily by the victims or u s officials to show bad faith i think so when you're purposely ignoring leads given you by the victim's family and you're not you're sitting on that and there they are and they were pretty good leads given that the the lead to sell ask was about a stop talking about this case they were going to end up dead now they don't even go talk to or feel that after that type of threat is made it's mind boggling that type of purposeful ignorance and not pursuing obviously this the essence of bad faith but i'm not sure i need to show bad faith i just need to show that they did not justify the length of this delay before they brought charges thank you i'd asked her to reverse the finding of that issue thank you very