the court my name is dominic genteel i'm here on behalf of frank that august the you know we received a notice from the court on friday that we should be prepared to address the florida versus nixon case and its helpful in the analysis of florida versus an action to recognize what the sort petition was granted for in that case it reads whether councils failure to obtain the defendant's it was really a very narrow case that came before the court it may be in your case before it came to the court that we have to deal with the opinion that the supreme court gives us it was an eight zero opinion so there wasn't much doubt where they were going there the there was a confession of to of all of the of the issues dealing with non capital punishment and they say that's very fine in a case like this th magic per se prejudiced i think i don't think we need to get to that issue here and i don't think that it automatically sets at the site and i am prepared to address it judge wallace clearly the lawyer the tried the case and nixon who was an experienced capital punishment lawyer from that the feds side and clearly the facts in that case given the confessions and all of the  direct evidence including eye witnesses that moyer face the overwhelming situation and what he wanted to do appropriately so is the preserve his credibility for the only france witness he was not and i think the council is prepared to concede that both of those witnesses were called by the state there was no there was direct evidence of an arson because they found that it was a fire that was started but there was no direct evidence as to who committed it the only evidence that the who committed it came from the testimony of wells and legal and that only deals with essentially preparation for an arson the problem here and where the real prejudice actual prejudice result that here in this country in this concession is that by conceding the larceny he mr wolfson basically provided the state with the motive for the murder and bike and the conviction of the murder and the and by conceding the arson he provided the state with an acknowledgment that his client did something to cover up the evidence a tacit admission of guilt consciousness of guilt and so in my opinion for what little that may be worth at that point in time he ceased to be an advocate at all with respect to mr de august the you know at least as to those two parts of the case he was essentially advocating for his convictions now when he did that not only did he provide the motive but if you look at the facts of the case you see that the testimony that supported the arson and the testimony that supported the grand larceny came from these two witnesses lakeville and welts two witnesses that he had to discredit in order to prevail on the murder charge and what this he do by conceding the arson and conceding the grand larceny he essentially concedes their credibility now i will grant you that there are some lawyers who believe that they can pick and choose in terms of one of the believe somebody and one not two but in the context of most trials someone is either believable or they are not and it is a futile if you make a futile attempt when you try to tell a jury that you're so smart you know when they're telling the truth and you won't know when they're not and so actual prejudice result that here i  to say how that case should be make the your case when chronic no longer is available and your argument is that it doesn't change anything i think that you can i think that you can take the stric that mr wolfson never discussed this strategy with frank de augustine oh and so i believe that nixon and timeless perhaps it's only in time as the opinion of  assumed prejudice you never really reach the issue as to all three just the judges that sat on the court sure the judges wrote a concurring opinion and other another panel of the circuit in an unpublished opinion sort of  get you anywhere i understand but that but be that as it may at least there's there seems to be agreement among some pretty good lawyers who wear robes and are judges that the that the that a lawyer has a duty did not raise the issue i listed on the rose label then what's your point about her it seems that she your view was that she had a deal going into the trial for benefits that weren't made available to the defense and therefore she committed perjury in the prosecution failed in  that she did she got after the trial well i think the biggest part of it is the letter from justice from justice and peace chance letter from justice of the peace i'm not station that he made with respect to why he released her somebody contacted him right and he said that she was working with metro who contacted him that would need to be developed was you see that's the problem you can come to us and say that would need to be developed it seems to me that you're asking present to the court to get an evidentiary hearing which you have declarations and affidavits we present that the petition that was signed it was it was a it was a verified petition but was there anything attached to it from any of the parties who might have given her a deal saying yeah we gave her a deal and it just never came out we did not have that because we couldn't get them to cooperate with us did you try to subpoena them we were given a hearing it was nothing to  had a supreme court addressed that issue as well now that's the dissent in a state courts not going to get us anywhere in terms of a factual basis for what you're asking for i have always asked for an opportunity for an evidentiary hearing in this matter if you ask and it's not surprising that we're not getting the cooperation of these laws did you ask for an evidentiary hearing the federal district court here yes we did and what was the answer to that i didn't get it yet did you attach any declarations or affidavits from any of the players to this to suggest that there was a deal on the battery and the prostitution and the trespass and all the other case we submitted a copy at least of just the springers opinion that there was sufficient evidence of a deal it would seem to me that that's enough to raise and this you know how do you know that just isn't something that they gave her out of the goodness of their police heart after the case was over judge struck you were prosecutor yeah and i also if if that's a legitimate question and there was a zillions of cases where there were no deals going in and coming out then people were given the benefit of the state's gratitude yes but again that is something that there is certainly an expectation of or a hope of and without having the information to do the cross examination you can't bring it out if she have a lawyer during this was she a suspect yes absolutely it's not only that you have a lawyer that's one of the ironies of this case she was represented by the public defender's office the same office that represented frankly i think did you or anybody on behalf of your client ever get  ahold of the public defender's office to find out if you had a deal those files were destroyed that's not my question i understand the files were destroyed did anybody get a hold of the lawyers that represented her i can't answer that why not i mean that's they would seem to be the people who would know i don't know and you know i have to restate something we did raise the issue of the concession in the petition in the search in the pavey is petition that we while i would think that it was at least of storm than the ineffective assistance so right now we really don't know if you want to new trial is that right for your client like to get a new trial that would be wonderful but if i could at least get an evidentiary hearing which i think this district court now you see there we go again i mean if you didn't appeal that then how can we give you something you didn't ask this for i think that the remedy is something that you have at your discretion you don't necessarily specifically state that in the brief we're not going to get that record well then i guess he's had ineffective assistance of counsel once more justices process the other side isn't titled to to stand up and agree or disagree that there should be an evidentiary hearing with no notice they got caught flatfooted but let me move on to mr gaines you say the counsel was ineffective in failing to investigate the possibility that gaines had manufactured the evidence by digging through records in the jail cells in florida is that about it that's about it and it's that there's a florida at the time what was he charged with i have no idea what steps have been taken to try to find this man we had signed that investigator about five years ago when we started with this case to try to find that man and as of i would say probably a couple of years ago he felt he could not what about against anything since then because we've been in this litigation all the while what about against himself as anybody found him or look for him or against as anybody gone back to them you know half the time these guys kick back and admit they made it up i mean is anybody tracked him down to see where he is or what not that's my experience the judge tried that half the time they kick back and check out jesse the only one we don't know now i know that it that i know that the information came from a studio which is there an affidavit from mr dagestan in the file roberts told me he was rummaging through my papers when i was not in the cell i do not think that that's in the pleadings so if we go if we were to send this back for a new trial where are we with respect to gains and roberts it seems to me that you'd be unable to prove your point and that is that against stole information and manufactured a confession without robert's without an affidavit or unless you're right that fifty percent of the time he's going to kick back and change his mind but we don't you haven't even looked for him i'm not criticizing i'm trying to figure out what the state of the play is in the case you know which candidly my take on the case would be to try it in a different fashion i'm not so sure that they could present gains again perhaps because he was cross examined his earlier testimony would be admissible at the time i do better without presenting gains again based on what the nevada supreme court said about him with respect to the penalty phase you know which that way would you like to save your me time i would  counsel was not infected in regard to the third issue as mentioned by appellants counsel the court as this court has mentioned the case floor of the nixon is the central case that addresses this particular conceded the guilt on the arson charge as well as the larceny and as you addressed what mr wilson did in regard to and compare that to what the defense attorney did in the next case it's clear what mr olson tried to do is tell the jury yes my client is guilty of arson after the murder had already been committed by  vera and also my playa that is guilty of grand larceny which was a lesser included in the charge of robbery with with you so deadly weapon he never considered the murder which is what the defense attorney did in the in the nixon case and so what he was attempting to do was he was attempting to present to this jury a plausible alternative but my client went in there after the fact saw an opportunity to take some jewelry to take some money and leave but the body was already there the murder had already been committed and there's no evidence in fact i think mr also indicated there were ten different points of conflict in the evidence indicated that it was the other individual who actually committed the murder in this case and i'm sure that mr walton since this was that publication probably could have conceded the fact  his client had committed the murder and then just argue the law or be given life without possibility of parole as opposed to the death penalty which is what the assistant public defender didn't in this and but he didn't do that he tried to save as much as he could he can for the persons on the brink of losing their life but the argument that was raised against is that this was the wrong choice under strickland because it gave way too much it gave away the  will case that she had with the state but he pointed out a lot of the fish and c's in the evidence and the way that he cross examine these individuals particularly mr wells actually supported his subsequent theory that his client may have been guilty of arson he may have been guilty of grand larceny but he wasn't guilty of murder and so it was a actually able to through cross examination mr wells set up that theory and point that out to the murder and took the opportunity to steal the jewelry and then burn up the body just to try to cover up the theft and all that kind of stuff it seems to me that the testimony of gains becomes even more important because gaines the cellmate comes in with a full confession if you believe what he had to say on the murder is not right well that's correct because just as i can tell the defense attorney who conceded all these things never lifted a finger to investigate the possibility that gaines had manufactured this testimony is that right also well in that regard the the record i don't believe is very clear i don't know if mr wallsend traveled to florida to talk with mr and i mean anybody who's at all experienced in law enforcement knows in the one nine hundred eighty s a gigantic epidemic broke out in the united states of jailhouse snitches who figured out the fastest way to get out of trouble is is not hire johnn cochran or mark geragos or somebody like that but call the sheriff and make a deal by snitching on somebody else it was so bad that the los angeles county grand jury issued a report on two hundred cases laws were changed all over the place and this is s the news to you because your own supreme court took one look at this guy games held their nose and throughout the entire panel they face because they thought it was so untrustworthy and so here we have a case where i'm guy comes in with a confession reeks of potential manufacture and counsel doesn't do anything to try to dispute that i mean you're giving up all this information so yeah he's guilty of all this and all that and then you don't even investigate the possibility that the confession is bogus charmer that there was sufficient cross examination and as i understand it the issue that was really presented to the state district court judge was the issue regarding rosenwinkel and the judge and it's on the record indicated that she  really is i'm having trouble with is the idea of not even looking into a guy who's going to come a criminal this guy gains in a record six feet thick classic career criminal and the prosecutor brings this guy all the way out to nevada to testify in this confession i can fashion and the defense attorney as far as i can tell from this record failed utterly to look into the possibility that it was manufactured while he was certainly cross examined a time of trial and it's my understanding and again i know the court that's why it seems to me that you have to lay a predicate for that by showing through somebody like roberts or somebody else that the guy was running from this the standard stuff you steal the guy's file you get the axe you call the cops and it sounds like he must have confessed to you because you know the facts that only the cops know from the scene well what you do is you weigh that during cross examination with his prior criminal history you talk about a motive to the jury you do all sorts of things that again whether where this guy roberts come from i don't know where roberts came from fairly he was an inmate there in florida did anybody talk to him or subpoena him on behalf of the defense i have no idea that's something  mr gentil would have to address which that it's rather remarkable that the supreme court takes one look at gains against this testimony and throws out the entire penalty phase and creates a new rule we're not going to accept testimony from people like james these jailhouse snitches without corroboration we're not going to exactly and i suppose and that's this is a man who was never investigated by defense counsel i suppose if there was an evidentiary hearing at the time mr wilson could have answered those questions but i've got to assume based on the record the fact that he was able to sufficiently cross examine rose lake will cross examine her about all sorts of pills she had with the state with the prosecution that he had  but any type of motive that he may have had in regard to this testimony was gains getting some kind of a deal in return for his testimony i don't believe so on the record is not clear in that regard gays had a lawyer most of which was in jail in tampa that's correct was that there was the prosecution dealing with his lawyer i don't know i gather the record is void of that those those questions are not answered but i guess when you get back to the question of whether this was truly in effect assistant counsel this court would have to look at everything that mr wilson did in this regard the evidence in regard to murder was very very strong it's hard it's hard to believe that it's time ineffective assistance of counsel to fail to investigate the source of the confession when the source is a guy like gains i don't again i'm certainly not conceding that he failed to investigate i didn't see anything in the record that the dress that issue because there was not a hearing in the state court ask mr wolfson exactly what he did but i can tell you this that during the cross examination mr gaines mr gaines criminal history was certainly  gains his testimony that you know of itself was cooperated by a lot of other evidence that the state had again mr also had a difficult task that was presented to him and i think he did the best that he could label's initial explanation of what she knew about this very group to the police to their nevada police in florida consistent with your later testimony there's an allegation that there's all kinds of inconsistency that were not turned over to the defense well as far as inconsistency so are you talking about like the agreement that she had and that wasn't turned over to the defense i know that she testified somewhat differently that's right in the preliminary hearing and she at time of trial mr wells was able to expose that on cross examination but again in my mind even though mr gaines was able to come forward and say hey i was in may this person confessed to me exactly what he had done rose was the key in this case and one of the allegations is the mr also was ineffective excuse me one of the allegations as the prosecutor committed misconduct by not turning over certain information  trial legal was that several times about some type of agreement she said she didn't have an agreement in exchange for her testimony as you recall off the record mr olson made that call it the fact that well she may not believe so sound a lot like it's prejudicial well i would agree with that if in fact there was some type of written agreement and it wasn't disclosed but again or an oral agreement i have to be read well that's about and that's very that's very suspicious because at the time of the trial she had prostitution charges pending that were then cleaned up after the trial she had battery charges pending that within clean up after the trial she had a grand larceny charge that was under negotiation that was cleaned up she had trespassing pending that was cleaned up after the trial and then all the files were destroyed and that might cover this kind of a deal so are you telling me we're supposed to believe that the police where the prosecution out of the goodness of his heart ran around and got her off of her battery trespassing this demeanor and prostitution charges after the trial was over with no deal well two responses you're on her first response is they have the burden to show that the state engaged in bad faith in destroying the files and they haven't met that burden how do you mean well i mean can you infer it from the fact that all of these cases disappeared and the finals disappeared with files may have been contained within these just routinely destroying according to our records destruction program in the office after three years we destroyed everything is that how they got destroyed i don't know the answer that wasn't developed in the in the in the record below but i would imagine being familiar with the public defender's office as well as the clark county district attorney's office that there's probably some type of procedure where after a short period of time once a case is been resolved and close those records she had called up the mother and told him that information yes and then the mother ended up just fine on behalf of the defense but in addition to that you've got anthony wells who actually went to the apartment with mr jaggers to get a deal in return for his testimony there's nothing the record indicates i don't i don't believe he did it that he you know this was stolen property that we that he was telling that have been taken off at least the dead body if not taken during a murder well i believe he had some indication he was getting a deal in return for his testimony no there's no indication the record that he was opening statement and it isn't until after he's committed to that sometime mid trial that he gets some but not all of the impeachment information and legal that makes a difference by that time this really became a promise he had a whole lot of and not concede anything that she was saying was true i think a good lawyer can make that  me he makes his strategy mentions the station and strategy before he has all of the impeachment material i don't think that he there i mean a long time an opening statement is one thing when you do in closing i'm sure he has the same thing in closing but that's that he had committed to was there he committed to his theory an opening and he did so without talking to his client to so what wells becomes consistent with the defense is that your idea it would seem that way to me except he told me i was i would have well information pretrial which he should have had i don't think there's any dispute there then he may not have made the decision he wouldn't have the talk to his client about it but once he made the decision albeit with less than full information he certainly had  clearly established because it's all a client it was making it that's the law i believe if it can go either way it's reasonable strategic decision yes no not that without selling your client if you're going to talk about charge i can't say that it never is i can't say that it never is i think it's fact specific are thank you your time has expired counsel appreciate your argument matter just are you will be submitted