mr hoover learned pending potentially capital homicide charges some sixteen years after they were filed and all the while the prosecution alone held advantage over the crucial access evidence stage they decided what witnesses would be identified what evidence preserved what investigation pursued and what leads would disappear he said he learned of them didn't learn of it earlier when he was given a notice that is one of the factual findings by the court of appeal that is not supported by any evidence in the record your honor and i'll jump to that right away the court of appeal found and i'll give you a page cite so we can follow the record is an interview with mr hoover in january two thousand and eleven now sixteen years since the crimes where he expresses complete disbelief to the investigator for the d a s office and the da gives him no good reasons for what happened in fact the investigator says this it european he had no knowledge of it during that time or the st he learned of it was when he went to get the job and found that that hole was going to prevent that yes and actually he had gone to parole as part of that they said you know good jobs you can get out earlier and then you learned of that in that process i can you imagine you imagine learning a potentially capital homicide charges pending against you in a parole hearing that's more than actual prejudiced that's palpable prejudice well why don't you move on to the core issue but you still have to show actual prejudice where's the actual prejudice yes your honor this is not a cold case and just practicing this this is not a case for seventeen years later some technology proved m however in the middle of trial they were given the most prejudicial answer possible because mr hoover was in prison for a crime of violence i only is that in permissible propensity character evidence shifts all the blame for the delay to mr hoover who didn't even know in time to demand trial hire an attorney obtain evidence do anything for himself and so that's pure pure pure prejudice ok so if he had if he had been on it for whatever reason shortly after the incident what would he have what would have been available to him that was not available in th appeal state court of appeal found no evidence that krave low andrea his wife had somehow impeached the version of events told by his accusers at that preliminary hearing but there's no discussion at all in the court of appeals decision about the only record of the preliminary hearing left and i again i would ask the court if you can please turn to page three hundred and sixty five because a vigil of this excerpt a record three hundred and sixty five the visuals important that th notes but that page is important because you'll see if the very bottom left corner preliminary hearing rulings and important findings like does not find wagner to be credible exclamation marks big deal about this terry hussy the informant called cops and they wanted to talk to terry wally hussey and walling lying at st exclamation exclamation by the prosecutor  directly undermines the full court of appeals finding there is nothing impeaching in that preliminary hearing transcript and i know your honor sat on the superior court not very often capital charges are dismissed at the prelim that is something of value right there and one other aspect your honor that could have been presented in one thousand nine hundred and four that i think is actual prejudice is the issue about whether an alibi could have been established andrea confused by seventeen years of andrea were living in their home at the time and whether or not those two parents would have said oh i know on august th they were at my house dinnertime they could have established habit evidence they usually come to my house and this is important because mr august and disappeared from the walling home about four pm hoovers and andrew's parents usually i did about five pm and the body wasn't called until about eleven pm so there is an issue about the timeline and again that's where the dispatch logs could help too so we could have figured out precisely how far it takes to drive from the walling home across the rio vista bridge in a sacramento county but th standard in the sherlock cases actual non speculative prejudice so that's the underlying due process standard and then we have to review it through the lens of at the deference it requires so with that in mind how is it not speculative to just say maybe the parents would have testified to this even though she was confused about the day of the week is it seems speculative  it seems like maybe there might have been something there but it might have and so it speculative i think that's a hard standard to deal with after seventeen years after the fact and this isn't preserved i mean this is a capital case we're expecting heightened standards of reliability on behalf of the prosecution they don't preserve a preliminary hearing transcript with and they start they have ten years preserved i think till two thousand and four they don't do that and so to go back and try and reconstruct what would have happened in one thousand nine hundred and ninety four it's a speculative standard by even asking us to do that but you can look at the trial and you can see that the jury struggled in this case ten hours three days deliberating and you could see why they convicted mr hoover which was they learned of a crime of violence supposedly explaining the delay as his fall so that is actual prejudice that's one hundred percent actual and i think that's exactly how they rea and i just kind of also like to look at just the basics of the fundamental rights we're talking about here because due process is a lot of notice mr hoover did not receive notice in time access to evidence mr hoover could not access evidence for sixteen years preservation of evidence prosecution to preserve evidence presumption of innocence innocence impugned with character evidence proof beyond a reasonable doubt lowered in that manner and that is not a combination leading to a fair trial and there isn't a reason to wait a prosecution admitted at trial the only thing they're waiting for was john wagner's return but the magistrate judge the preliminary hearing found his statements to be incredible he lied to the police he made a false police report about stealing the car that was used for the kidnapping he's described as a lot l o p lowest of all people why would the prosecution want to present that why are they charging mr wagner and in the end you know for sure that there was no reason for the delay due to mr wagner because the prosecution filed a notice saying hey we can just introduce his hearsay statements anyhow though they didn't do that so this laser is not consistent with the concept of ordered liberty and that's a fundamental thing to our american scheme the ultimate decency of a civilized society decides the way we treat our prisoners and that reflects fairness of terminations that's far worse for an innocent man to be convicted and guilty man to go free than that you want to save your time for rebuttal i knew i was minutes was a one thing that fairness determination is not the perspective of the prosecution but they could wait like this in every capital homicide case it's a perspective of everybody else it's for perspective from the augustine family should have had to wait seventeen years perspective from the judge in the court should have had this eyes docket for seventeen years as prospective mr hoover who's now waiting twenty five years for relief you know is the standard of review in this case this court can only grant relief if it finds that no fair minded jurists could agree it could concur with every aspect of the court of appeals denial on prejudice grounds and  that's that's that is the central facet at the center of the central tenet of this case but i want to dive specifically into some of the points brought up by my colleague on the other side about specific allegations of prejudice and st talk about evidence do you have that he would learn of the chargers more contemporaneously you could you don't have to sign forms or anything else i don't the record is unclear on that i think it's reasonable to state court factual finding in that respect was reasonable because we know that this detainer was filed with the prison system i think it was a reasonable inference than mr hoover would have known i think the more important point is though that the filed against mr hoover and that was filed with the prison system in one thousand nine hundred and five by the customer the people just kind of blow off murder charge pending against them and they just think nothing of that if they're aware of that no i mean i don't think that's i don't think that's custody was you know that he had a fairly substantial sentance he did your honor he was in on a life with parole i believe on attempted murder but i think just just to get back to the state not for lack of a better term holding it against mr hoover that he didn't file sooner these central and alice is that this court has to grapple with in this case is was he prejudice was his trial in two thousand and eleven rendered fundamentally unfair by the period of pre indictment delay in this case to making that argument you're not relying on him being at fault or you know because you know in the normal sort of speedy trial federal condo the what what the case turns on what lovato said was that prejudice is a necessary required component non speculative concrete prejudice and in this case the court of appeal went through each allegation of prejudice and made a reasonable determination that there was no prejudice a determination that fair minded jurors could easily concur with and so i want to turn specifically to a couple of those aspects of the claim and specifically i'll talk about the missing alibi testimony that might my colleague brought up so miss carvel those parents of course were deceased by the time of trial but the court of appeal reasonably found that there was reason to believe that they would not have provided in actual alibi and that even if they could have provided some generally helpful evidence testimony that that testimony would not have been deemed credible and this was a reasonable finding by the state court of appeal if you look at and it was touched on during my colleague's time andrea carvalho's actual testimony from the trial she was unsure about certain things but what she was not unsure about was that the purported alibi dinner occurred on a saturday or sunday she made clear for the jury that the reason after seventeen years she remembered that dinner so specifically was because she had a tradition of going over on the weekends and looking after her parents and of course the crime in this case occurred on a monday night so there was not as a matter of fact an actual alibi that could have been corroborated and to the extent this court can presume and i think speculate is the right term to think about it but to the extent this court can presume anything about what miss carvel is terror parents would have testified to it must at least presume they would have corroborated her asserted clear memory of the dinner at issue and so in fact an alibi would not have been established and the court of appeal also recently found that given their family connection even if they testified generally favorably it would not have been the type of testimony that would have been deemed credible available by the time trial and the court of appeal looked at these witnesses and reasonably found that their disappearance at trial actually benefited mr hoover and if one even looks for a moment at the trial they would have corroborated terry hussies testimony about what occurred leading up to the kidnapping mr wagner would have largely corroborated miss hussies testimony about a confession heard from carvalho about what happened in the cornfield so fair minded jurors could easily concur with the the state court of appeals no prejudice finding in that aspect  it should really the case that the reason why the state did nothing with this was that they were hoping wagner would show up again or is it just that he was in for a long time and just kind of put this on the back burner so the record is is is scant about about the motivations there was some evidence in the record that at least the delay was was triggered at least at the start by missing this this really critical witness this one of the few witnesses to the murder and that's about all there is in the record but again i think the important part here is under law waskow unless a concrete showing of actual prejudice is made this court doesn't reach  the nd step of the analysis where you balance the prejudice against the justification evidence and with that i'd like to briefly touch on the absence of the preliminary hearing transcript now the state court of appeal reasonably found that this transcript to the extent it existed had no tendency to be exculpatory of mr hoover and this was a reasonable finding but before we even get there i think the record here easily supports a finding that there was never a transcript generated in this case the prosecutor stated in pretrial hearings that sacramento county's practice was to not generate a preliminary hearing transcript when a defendant was not held to answer but the court reporter's notes who did been retained in the transcript could have been generated from the notes isn't that really the issue that the notes were destroyed in two thousand four i certainly certainly i mean i think that is something that's possible there's nothing specific in the record about that but i i i suppose that's a reasonable inference that's probably what happened and what i was just going to say as i recall th state of the state law than the court reporters only need to keep their notes it's for ten years that's correct that's my experience that sounds correct to me your honor but i think ok so even apart from the fact that there may not have that there may have been a destruction of something that could have led to a transcript the state court of appeal here made it an adjudication that was reasonable that that those notes that transcript whatever it may be would not in california's prop one hundred and fifteen dollars evidence so an officer came on and basically gave hearsay testimony under the prelim about the police statement that had been given ok so when we read in the handwritten notes that wagner not credible that's really just based on rebuking what the officer is saying about wagner's it exactly and i think there are some important points about that if you review the summary of what wagner testified to it's clear that at the time he gave her didn't testify excuse me told police yes it's clear that at the time he spoke to police he was still a potential suspect in the police eyes he was mirandized at the outset of that police statement and so there's there's reason to believe that he might not have been as forthcoming and and not even viewed as a potential suspect and when even the officer nd hand recounts the story the judge you know doesn't believe it and then you you know they represent to the court that they were holding this because they wanted to to get him why isn't his last significant you said he was a critical and only person  witness and so being able to put him up on the stand even as a hostile witness and you know attack him why isn't that prejudice well because i think judge collins st of all the fact that he did not give testimony at the actual trial means there was nothing to rebut no reason to cross examine him but again even if it but if this had been done back in you know seventeen years earlier we have to look at what's the effect of the delay if this had been moved in a timely manner wagner would have been there and would they could have put him up on the stand and they could tried yes and i think given the record available the state court of appeals believe that wagner testifying would have been far more harmful and would not have what would have tremendously harmed the defendant's case as opposed to benefit it was reasonable if you look he corroborates everything about the people who went out to the cornfield now if i can say i it's hard to know from the prosecutor's notes what exactly the magistrate judge found not credible about wagner's police statement but i think an obvious candidate is the idea that he told police that after being conscripted into this this group that kidnapped the victim and drove all the way out to sacramento county he told police that hoover tossed in the keys to one of the cars and said take off i think especially given the fact that he was giving this statement as a suspect that's something that that jumped out to me as potentially  aspect of his statement that is not credible i think if you look at the other aspects of his statement there are absolutely corroborated by what ms hughes he testified to she heard about miss carlos confession the facts of those two statements jive really well and lend credibility to each other and that's i guess i'll leave the court with this it is true that that much of the incriminating evidence came from one witness from from terry terry who see but there's plenty of reason in this record to believe that her and her testimony was credible was accurate if you have anything other than her testimony yeah well i mean as i said the bulk of the incriminating evidence in terms of incriminating mr hoover came from her but there is plenty of evidence in the record that connects in with what her testimony was that lends it credibility so for instance the fact that the police held out the information about two crime scenes only a person with percipient knowledge of how the crime went down could have known that the victim was shot four hundred yards in on a dirt road crawled out back up to the highway and was shot again that lends credibility to misuse his testimony about the confession by kind rollo by a by carvalho and another point her initial test her initial statement to police which was admitted for the jury talked about how this carballo had admitted that when they came back to the scene they found the victim sitting at the edge of the highway on his knees when they shot him a nd time well that  testimony is corroborated by the physical evidence in the medical examiner's testimony about the bullet path going through the victim's head and in fact the medical examiner opined that that a theory of that bullet wound was consistent with the victim having been on his knees it's a little fact but it lends credibility to his testimony about what carvalho confessed to so if just looking at this was largely a one when this case but it was an incredibly credible one witness case whose testimony was backed by independent places in the record that that generally lends credibility to what she testified to it's going to start with some of these credibility things that we brought up there another reason to disbelieve john wagner is he said the victim was killed with a forty five caliber weapon you know that's not true did abba's on gun there was trying to hide for unclear  in terms of being credible also has her problems her initial interview she said this occurred in yellow county now the delta is a confusing place to drive around but yolo is fifty miles or so from that bridge leading to sacramento county which leads me to believe that the magistrate at that prelim rejected this confusing statement for lots of reasons going to reliability but also facts that don't match up in the record bussy was at the walling home when michael disappeared there the next day when they lied to michael's brother about what happened to him she was there and they lied again to the police about what happened to michael you're still there a couple weeks later when she talked to the police about her husband another terry terence hussy and she was there even further later when whiling was arrested for up a bit for a probation violation he's taken a county jail and our week later she calls and says i want to speak with you but only in the jail cell with mr walling and they were given time to discuss before this started and then they had a dual interview this was presented at that preliminary hearing in one thousand nine hundred and four and that judge found that's not sufficient to hold andrea who supposedly driving the car during a kidnapping murder capital homicide charges the most serious and so there isn't a credibility question with these two witnesses they're both incredible that's why this evidence is so pale it's why the jury took so long to make a determination i just want to point out like it did in its answering brief the government has not addressed the inadmissible propensity evidence that was introduced to explain the delay somehow mr hoover small court building address it is now on the answering brief and you to hear about today in our argument from a robot me that is in itself the type of evidence that violates due process and it probably does so here where it's trying to explain the delays somehow mr hoover's fall i want to touch on the right to counsel because i think it's ok for the court to consider these rights in tandem and you know justice rehnquist recognize there is the constitution there is a loosely called area constitutionally guaranteed access to evidence and mr hoover was denied that when he wasn't given counsel even though adversarial proceedings had been initiated through a complaint and up to a preliminary hearing and if that if they got the holding order that prelim you could have expected the prosecution to use that transcript against my client there's nothing that an effective attorney could have done in this situation and i'll just close by noting that if you grant us the really for requesting mr hoover is not walking out of emitted at this time that answer session for today and for the week thank you all very much