procedures and judging by the text of those procedures alone how that they satisfied federal due process requirements the court focused on the text alone because i was born quote had not tried to use the process provided to him by the state or attempted to vindicate his liberty interest if mr osborn had availed himself of the alaska procedures then the question would have been whether those procedures violated recognize principles of fundamental fairness in operation for me ask you this i understand the role you're playing here and it's an interesting question about fourteen zero five but what possible benefit  the pocket of the deceased officer which was the pattern that he had when he stopped people what is the end they have to do with that well couple responses your honor first of all i would submit to the court that that particular question although admittedly a difficult where the where in the lower court did you raise the issues that you're now raising heal well the so a couple places your honor at nineteen testing has deprived plaintiff of his liberty interests in utilizing the state procedure to obtain a reversal of his conviction and that is a denial of one's fourteenth amendment right to due process so can i get that this you're talking about that you're talking about  never raised right well no your honor it wouldn't have been raised in the state court because a state court petitioner was proceeding under section four thousand and five so this this proceeding that's why i say this proceeding really is quite separate from what happened in state court this is official constitutional challenge here to raise official constitutional challenge and in fact in raising official constitutional challenge the specifics of mr morrison's case of course of this court knows are quite irrelevant to the kind of the question is whether the statute categorically deprives petitioners and mr mor some of the features of section fourteen zero five in california are in fact more generous then the alaska procedures that were an issue and i was born but section fourteen zero five as it existed prior to the recent amendments that took effect this year in two thousand and fifteen contain two obstacles that were not that were not a feature of the alaska provisions and these obstacles have made it nearly impossible for prisoners to obtain access to d n a evidence in california and remarkably those two obstacles were so significant and unworkable that the california legislature itself recently amended the statute to remove those very two obstacles and reduce the burden on prisoners there was quite a remarkable develop frankly even after i filed our opening brief in this case to find out that the california legislature essentially agree with the arguments and revise the statute according what you're arguing i suppose to meet those obstacles would be impossible what's your showing in the record well it's a great question your honor this case was thrown out on the motion to dismiss and you know this is a situation where it may be the case that at some point down the road defendant is entitled to summary judgment on the question if they can prove as they argue in their brief that the statute actually does work in practice but there has been no evidence on that because the case was thrown out of the motion to dismiss face and that's that's pretty remarkable in of itself you have official constitutional challenge  where there is no standing problem we know that mr morrison has standing to challenge the constitutionality of section fourteen zero five because he was denied rights under that statute there's no state action problem and there's no question that there's a valuable liberty interest at stake here the defendant concedes that they say and in fact the state brief in their state in their intervenor brief says that the right at issue here is absolute and not waive a bill so there's no question that there's a very significant liberty interest at stake and there was official constitutional challenge under procedural process requirements arguing that the procedures in practice do not allow prisoners to vindicate those very liberty interests and provided some statistical analysis that you think verified that in some way contested section fourteen zero five petition had ever has ever been granted and if and if even our own research shows that you're just dead wrong what we do with that i believe you'd send it back to the district court for factual development i think throwing the case out of the motion to dismiss stage based on the text of the statutes alone is inappropriate in light of the supreme court's admonition that if you have tried the procedures at issue which mr morrison has then the question is whether those procedures work quote in practice that's the language that the supreme court used now they didn't conduct that in practice analysis in i was born the mr osborne had not actually tried to use the procedures in alaska he was challenging the very text of the procedures in fact those procedures had just come into play had just been passed whereas here the statute issue was was passed almost a decade or a decade or more earlier so we have enough evidence out there there is enough evidence out there that we could determine whether the statute works in practice and so throwing this out of the motion to dismiss stage was not the right was not the persons verdict or sentence would have been more favorable if the results of the d n a testing had been available at the time of conviction and the california supreme court in the richardson case explained that a petitioner fails to satisfy that standard if there is quote a substantial amount of other evidence linking the petitioner to the crime but of course that will that gets back to my initial question how do you how can you how to get around richardson this regard when you've got substantial evidence that there were no a anywhere would still have your client in a very bad spot and again your honor i think that comes back to the nature of first of all the nature of official constitutional challenge and we're not here to litigate mr morrison specific circumstances or whether the state court was correct to deny his fortune that you have to show a facial challenge and there's no circumstances under which the statute works right that's correct and in the in the circumstance in which the standard is is there substantial other evidence to link the petitioner to the crime our submission is that there is no circumstance in which that formulation could work because it would mean that every prisoner essentially would be would be denied their fortune of five rights because every pro every by definition every position has already been convicted beyond a reasonable doubt based on substantial other evidence so how could you ever say that there is no substantial other evidence the king the petitioners of the crime and that's the point here if you had a case where identity of the perpetrator was not even a issue in the case of the question of the in the case was was there a crime committed everybody knows what everybody agrees on who committed the acts the only question is whether the acts constitute a crime maybe in that circumstance it would make sense to deny a fortune a five motion because what possible circumstance could could d n a possibly help that position that's not the case here this was a two month long trial there were dozens of witnesses that were called to testify about the identification of the perpetrator identification of the perpetrator was the issue at trial there was expert testimony put on by the by the prosecution link trying to link the defendant to the crime based on gunshot residue based on fiber analysis identity of the perpetrator was clearly the issue the issue at stake in the trial and defendant for forty years has maintained his in my client for forty years has maintained his innocence arguing that he did not commit the crime so i at the point to which identity is a central argument that's taking place at trial and now forty years after the trial took place there's this possibility of testing evidence the evidence is sitting in all in a locker it would take a few days at most in a couple hundred dollars to test it and determine whether mr marson is theory that he didn't commit the crime has any validity whatsoever instead these parties have been litigating this for a decade a decade to determine whether he can simply just test the d n a the evidence california california law california penal code section fourteen seventeen point nine a under that penal code by the text of that very provision the only reason the evidence is sitting in a locker somewhere is so that it can be tested for d n a there is no other reason to be keeping that evidence forty years after the crime yet there it sits untested sought to have it tested the other the other official problem with section fourteen zero five as it existed prior to the recent amendments is subsection f two which is the chain of custody requirement and again that's a that's a provision that the alaska procedures did not have so not governed by osborne and under section fourteen of five f two a petitioner has to prove that the items sought for testing have been subject to a proper chain of custody but how a prisoner possibly supposed to satisfy that requirement with the information necessary to prove that requirement is all in the hands of the government and the statute at least prior to two thousand and fifteen did not provide petitioners any mechanism for obtaining discovery on the chain of custody requirement now the state in its brief in as intervene or in this case says that a petitioner can meet this requirement with quote police evidence storage and laboratory logs and records or court reports generated by crime scene technicians but that's the very point the prosecutors in possession of all of that information and in fact the california legislature recently changed the statute to eliminate that requirement and instead make the prosecutor and the police to make all reasonable efforts to obtain and provide the necessary chain of custody information so again the very few provisions that we challenge the reasonable probability standard section of five as well as the chain of custody standard section of two were amended this year by the california legislature to make it easier for petitioners to obtain access to their d n a evidence precisely for the reasons that we identified in our brief and i'd like to reserve the remainder of my time you may do so thank you to hear from the state should say the county in this case thank you and good morning please the court my name is chris whitman i'm with the office of the county council and i represent the respondent mark peterson who is the district attorney for the county in terms of our time this morning my colleague from the attorney general's office is here and he's seated his time to me just for the sake of efficiency since we have overlap in our briefs and the constitutional issues here are fully addressed in the attorney general's brief counsel why should we remain in this case in light of the amendments to the statute that depend on our use address the very claims he makes in this case your own is a few reasons why every man is unnecessary in this case the first is the reasonable probability element as very very little resemblance to the actual element as written in fourteen zero five and with the clarification amendments that went into place in two thousand and fifteen if you look at the amendments in twenty fifteen they didn't change any of the words of the reasonable probability standard or the materiality what they did is that they added a clarification and the source of this clarification was actually the richardson case the richardson case was concerned that when a state court was applying fourteen zero five and these two elements that issue here that they might jump ahead and get involved in the ultimate issues that are part of a hideous corpus petition for example with the materiality or apartment the court was concerned that if they didn't just read the question as to whether the test results would material to the identity of the perpetrator and they jumped ahead and were asking whether it be dispositive richardson just wanted to make sure that that didn't happen and same thing went for the reason probability the court didn't want  analysis to extend to the ultimate question of innocence and if there is any question with the court in terms of whether the amendments were substantive or non substantive quite answer that question is not necessary here and that is because the richardson case was presented fully and argued on both sides prior to the first state court motion that mr morrison filed weeks before the motion it was briefed by the parties and judge cram discussed it back and forth with the parties in terms of  what richardson meant and i mention that because if you look at pages one zero four nine and one zero five one of the richardson case that is where the legislature lifted the language out for the clarification material and the reasonable probability elements so whether this case were decided the current version of fourteen o five in those elements or whether it was decided on of the prior version the result would be the same and the other fourteen of five motions or habeas corpus petitions a discovery order is the simple procedure in order for the applicant for the testing to get the evidence that he needs but again even that is not a question of this court need wrestle with and that is because primarily on the reasonable probability element but the way that the court applied the recent probability elements in the trial court in the state court and the way that it was addressed in the district court here mirrors the actual language of that requirement this whole idea that there is a burden on the applicant for the d n a testing to show a substantial amount of other evidence in support of the crime that's an apparition and if you look at the actual text of richardson where that quote comes from the court was quoting the trial court in richardson and said and if you read the quote it goes on to say that this substantial amount of other evidence in context simply means that the trial court was applying the reasonable probability element so again whether the amendments were you know whether the case was decided in this district court with the amendments in mind or not it would be the same result know another another point that was raised by counsel is this suggestion i mean to the extent your honour's find us relevant the identity of the perpetrator of the nine hundred seventy four murder trial i don't think that's relevant here because that was never a ground for either of the two state promotions to be denied but it really again is divorced from the one nine hundred seventy four murder trial to say that the identity of the perpetrator was the central issue or main issue and you have to take you know my word for it or the prosecutor's word for it back then you could just look at how mr morrison's attorney argued the case and his two defenses in closing were diminished capacity and self defense and he said to the jury remember at the opening arguments when i told you i would not insult your intelligence by making arguments that you couldn't believe he repeated that at the closing because he knew that the jury given the seventeen eye witnesses the damning physical evidence the evidence of motive that there are it was really it was it was an issue i'll concede that it was an issue because mr morris and testified it wasn't me and i'm quoting here it was to do this on a motorcycle so it was raised at trial but if it was a significant issue you know i disagree with that but again that is not an issue that needs to be decided here because it wasn't one of the grounds for the district me the trial courts who denied the motions and also you know like many of the issues raised here on appeal by the appellant it wasn't presented to judge cohen the district court  opportunity to inform the district court below as to what facts there were to prove his due process allegation whether it's facial as applied i mean there are literally almost two hundred pages of briefing by mr morrison so if there is any suggestion that you know he could amend his complaint to actually state official as applied challenge you know there's no evidence of that in the court below the other issue i'd like to address is the notion that  this this chain of custody issue this is not something that precluded this i think i said before actually this is not sung it precluded mr morris and from taining d n a evidence but the amendments in two thousand and fifteen to this statute  they didn't eliminate a requirement or eliminate a bar either to applicants from getting d n a like i said before this the amendment that added discovery procedures to the statute was simply done to address the legislature's concern that they wanted to have a formalized procedure for discovery as opposed to just the routine discovery that occurs in trial courts counsel i won't address for a moment something i talked to your opposing counsel about and that is  in an effort to demonstrate what they believe is the fundamentally inadequate provisions under the former version of fourteen zero five counsel included he said he could find only three cases that granted a fourteen zero five motion we checked on westlaw there were eight cases referring that to that if you include maurice's case themself what what role if any should the statistical analysis provided by counsel play in our review of this case well i think none your honor and in particular with respect to the statistics that were cited by a llants counsel it's a tricky business with cystic so in the best scenario and here you have to look at the baseline of what was surveyed that's fourteen out of fifty eight of the counties in california which is from the get go if very impartial and non representative sample and then you have to look at what actually was surveyed you know what was available on electronic dockets so the notion that you could draw any conclusions that are reliable or reasonable with respect to how many motions were filed or burden to district courts every time you have a section one thousand three channels to the way the night of section fourteen zero five has been applied you have asked the district court to either hear evidence on or conduct a survey and the problem here for the judge if this issue were raised and again it where it was not raised below is that you need to know the facts as to why each of these motions was denied and you know if each of these motions were denied based on the reasonable probability standard or some other standard you know that would raise the second line of inquiry which you then be why and again that's you know if they're denied it may be for very good reasons i mean the reasons why we have the limitations in fourteen zero five  because the legislature of this state you know just like united states congress has acknowledged that you have to balance the interests between the prisoner and society's interests in the court's interests and that's something that the legislatures have done here because they have these substantial concerns with a number of issues that if you have no limits for example if you lower the standard as appellants council is arguing you have a flood of litigation i mean don't take my word for it you can look at the congress which is an the prison litigation reform act and the explicit purpose of that statute is to limit or stem the tide of frivolous claims by prisoners but there's other issues as well there's the cost to the courts there's the time to the courts and to the public defenders in the district attorneys that are involved in these fourteen zero five motions and you know last but not least is the question of justice when you have what is admittedly a needle in a haystack when you have an innocent person or for whom d n a evidence has the potential to free them to exonerate them and you have a a flood of litigation this needle in the haystack becomes more and more difficult to fight it delays the lower standards that you have the longer the delays of justice for those who the very narrow class of convicts for whom this statute was intended to protect and that's not mr morrison in this case i mean if you want the archetypal example of a prisoner for whom this statute benefits take a single perpetrate case with  shaky or nonexistent eyewitness identification and no other evidence that's a case where if for whatever reasons at the criminal trial the defendant didn't want to do d n a testing it would have the power to exonerate him or her and in this case it wouldn't because the eyewitness i d s against mr morrison in his trial the physical evidence i mean it was all consistent it was all aligned with the prosecution's theory and it really you know when he's convicted beyond the shot of reasonable doubt you know what he's left with is a diminished liberty interest and that's what is really at the core of this case is that when you have a post conviction remedy this state courts are given tremendous or i should say considerable flexibility in terms of how they protect the diminished liberty interest and that's why in the osborne case i mean if you line up what's the provisions both the statutory and the constitutional three part test and osborne with what we have here in california there isn't a serious argument that the california procedures are not more more generous which is to say the barriers that alaska hadn't acted with it's nascent you know non d n a specific procedures if those pass constitutional muster it doesn't take long and it didn't take judge cohen the district court below long to conclude that the flexible concept of due process here i mean was easily satisfied with fourteen zero five i mean there's so many things here in california that benefit the applicant for d testing that are not available in alaska should we treat the fact that the legislature did in fact amend the statute as we analyze this to we take that into account at all we focus exclusively on the current i mean the law that existed when the lawsuit was filed but we do this court certainly does not need to give any consideration whatsoever to the amendments because the issue before this court is whether the prior version fourteen zero five violated due process either or as applied to mr morrison i mean the the unspoken but suggested no some notion that an amendment to a stash you may acknowledge a constitutional infirmity is just wrong and i think i've explained you know the source of the only take a couple days to get the test on him a couple hundred bucks is that in the record there is no evidence in the record with the spec to the cost that would be available or even the location i'm assuming it's at the contra costa county superior court or otherwise maintained by the district attorney's office but the cost issue is it's a bit of a red herring i mean that let's just assume for the sake of argument that in two thousand and fifteen compared to two thousand and six when mr morrison filed his first motion for testing the cost has dropped or the efficiency of the testing has increased that still has no bearing on the other substantial policy interests that the legislature has articulated in support of having limitations to d n a testing for convicted  prisoners and i've already articulated those policy interests to the court so i don't need to repeat thank you counsel anything further you know there's not i'm happy to submit if you're honest you know more questions very well mr lipschitz you have some reserved time  thank your honour's i'm just going to dress a couple of points made by opposing counsel first this notion that there's going to be this flood of litigation the state brief discusses how d n a testing has been a regular part of proven criminal trials for the last at least the last decade there aren't there aren't a huge number of prisoners out there who who would be flooding the court is as defense suggests that we're dealing with a unique circumstance here because it's a crime that took place forty years ago long before d n a testing was used and so those are the kinds of cases that are out there  and frankly for the prosecutor excuse me for the for the county to get up and say oh this is the kind of case this rape case is the kind of case where we think d n a evidence would be appropriate whereas this case if there were that's at issue here is not the kind of case that's the problem with the statu you know we cited these statistics and of course the court can do whatever it wants or or nothing at all with those just things but but they are you know they are somewhat in my mind probative of what the type of evidence that could be put on it in front of the district court if we were allowed to get to that phase and notably the state of california intervened in this appeal filed a brief did not dispute any of these statistics instead what the state says is that it stands to reason that there would be very few successful contested section fourteen zero five motions because when the prosecutor feels that testing d n a is a worthwhile endeavor the prosecutor consents and turns over the evidence to the other how to respond to the county's argument that the  counsel in the trial court argued in closing not his client didn't do it but diminished capacity in self defense in d n a we really have no program value with regard to those kind of claims well that well that's never been mr morrison's position mr morrison's position has always been that he didn't do it i can't speak to what decisions his counsel made in closing arguments forty years ago but certainly the district court in this case did not view that as  positive it went it went forward and analyzed the official constitutional challenge that mr marson is raising so and stated that you know that identity of the perpetrator was that issue in the case would that have anything to do with the richardson's standard you know in terms of other witnesses what was said at closing argument doesn't at all enter into whether or not this should go forward well i think it enters into whether his fourteen o five petition his particular fortune five petition was correctly granted under the richardsons was quickly denied into the recent stayner but it does not go in my view to the categorical nature of section fourteen of five and whether it satisfies due process in the in the main of cases and you know that the the district here took mr marson at his word and in mr morrison has maintained his innocence for forty years he believes very strongly that you know to to do that as as defend as my physical put it committed this crime and frankly the testimony at trial there were lots of witnesses that say they saw mr marson do it but they were drive by witnesses this was an african american male of average height average build lots of drive by witnesses nobody who actually watched the whole crime take place from start to finish and so this is this is the kind of case where d n a evidence d n a evidence would shed light on mr marson claim that he's been innocent for forty years thank you counsel  before submitting the case and i want to say on behalf of the court that we very much appreciate c j counsel taking this case and the final arguments on both sides that help us resolve this case thank you very thank you you're on the case just arg submitted and the