that standard no reasonable jurors could assume he didn't even raise one from official currently and one of the more blatant examples of the california supreme court failing to even granting of an injury here in this case has to do with a juror who made rd party contact with her preacher about the very matter of opinion before which is whether to send mr paul the life or death and that preacher gave her a biblical passage that gave her peace with us ans but that wasn't the only claim that deserved a hearing in this case are certified claim alleges that the prosecutor presented false evidence or evidence that gave the jury more importantly a false impression of a biological link between the victim in this case and this ripping off the only direct evidence the only we also had declarations from all three members of the trial counsel team here every lawyer including the and the investigator acknowledging they did absolutely no factual investigation to uncover that false evidence and to raise that issue with the jury testified that that presence of those antigens gave a working system with mr pienaar specifically and the victim mixing fluids which tied mr pradelle to that crime that mixture theory was false a evidence actually shows that there was no such a mixture on those three items of evidence and in fact responded has conceded finally in this court to answering proof that one of those items of evidence the tissue paper actually does exclude the victim from the results so that tissue paper is linked to the bed sheet which is the other item of evidence and the the government conceded that the tissue evidence was untrue basically said the fact that that tissue evidence was had a false read was immaterial because of the evidence on the bed sheet and the command now that's correct your honor but that if the state court took that argument that respondent just made that would be unreasonable and that's because that tissue paper was linked to the bed sheet for two reasons number one the prosecution argued that the tissue paper and the veggies were linked together i don't mean to be graphic here but they presented this very graphic  population that involved the tissue paper being used to spit out jacqueline's in and saliva and then the rest of it going on the bed sheet so the tissue paper by the prosecution willing to gather but number two i think more is on that tissue paper thirty nine point eight percent of the population have a radio antigens it could have been one of the pinout mr kenaz many adult women sexual partners in his bedroom at that time he had an active dating life which the record establishes the look at the bed sheet that also you can't say that the inconclusive findings there really refute our claim because what we're looking there is a grouping of the least five stains on that sheet not only ask you specifically though in this case i think there were three special circumstances saw that there was sodomy lewd acts on a minor and or a population correct yes and now that a jury rejected the oral copulation it's worth now the testimony of the just which i agree with you as i just was not what should've been presented in court and i've no doubt about that but we still have the other evidence in the case in terms of the victim's body and the testimony of i might be mispronouncing the name who is or hauser housing the phone the pathologist so i'm sure you're posing counsel to stand up and say hey look yes we can see that was wrong but you have the  pathologist testimony and under that's the end so and then to suppression of that argument what's your response to that i think my response has to come in two parts and i'll get to the specific facts that you mentioned there but i think we have to make sure that we're understanding that under a new claim the prejudice standard here is different than other prejudice standards we're dealing with whether this false evidence busy at any likelihood of contributing to the verdict and again i don't think it's reasonable to say that that that's or ology haven't had no impact on the verdict it was the only direct evidence linking them together it was the chain it was the link in the chain of all the other circumstantial evidence including there from miller vs let me let me ask you about that though because again the testimony the testimony or the evidence as i understand the case was this young girl was found in the closet in a bag in the bedroom and then there's other evidence suggesting that he made some comments and we can debate the value is how he made some comments  prosecution at least thought hey this shows consciousness of guilt and he except for a why isn't that enough to establish the two special circumstances either want to sodomy or lewd acts on a minor i think because i think identity is critical here and i think that absent the sorabjee i don't think those facts establish identity and the reason is because mr canal is not the only one who had access to that bedroom the last person seen with the victim i'd say who actually did have access to that bedroom he was seen leaving  with the suitcase he was staying with mr quinn on the family in the days leading up to this event his neighbors had access to his bedroom through about getting there was no other blood or any other evidence of a crime in the circle of the dream other than what was in that suitcase that you mentioned in the closet and so i think even though that circumstantial evidence there is an inference there i think absent the direct tie there could have been a lot more made of all the other evidence the trial counsel attempted to present and some of the rd party evidence he  assume identity and i don't think we can assume that here but if you want to look at those specifics the only thing the prosecution argued for lewd intent for example with mr quinn all the jacket on this on these items of evidence that's all the california supreme court cited to it when it when it's  well what now we know that there wasn't actually ejaculate mixed in with with all this other stuff and part of the crime scene that we have predated everything is in the bedroom from something else so i do think we can get specifically into the special circumstances which we've laid out extensively in briefing i can talk about but i do think identity overarching is the more important issue here given the evidence the trial counsel has started to be tempted to present about someone else potentially being involved with us and we don't this would have been a whole different trial if we didn't have this but the prosecution used that potentially truthful testimony to say no that's actually a blood stain shorts although it wasn't just that there's a little bit of blood it gave the impression to the jury that these shorts are blood stained and the supreme court said that that's  quote an important link in the chain of circumstantial evidence against the petitioner and in the context of the revolting crime in which he was charged it's gruesomely emotional impact on the jury was incalculable and that's exactly what we have here we have a surat just allowing the prosecution to paint a graphic depiction of a crime that's just simply not true and had that not been presented this would have been an entirely different case that the defense could have presented an entirely different way although i have to say the  circumstantial evidence with regard to identity is pretty compelling if you're talking about the victim's body being found in a field like that i think that really highlights the importance of evidence but here you've got  the things that judge owens mentioned you've got the body in the suitcase in the closet you've got the attempt at misdirection and when the when the victim's father came to the door you got admissions you've got consciousness of guilt actions and all occurring within a very short period of time then you've got a deference on that so i think it's a tougher argument with regard to identity in terms of guilt let me ask you this does the materiality analysis different between the guilt phase where is the sentencing phase because in the guilt that you focus very much on they don't even know who committed this crime it's different questions are being asked and the jury's asked to weigh the aggravation versus the mitigation evidence at sentencing can you address that issue i think that there is no question here that the evidence is not only relevant or material rather to the guilt phase but also the penalty because the only aggravating factor that the prosecution rested its case was the one dealing with the nature and circumstances of the crime that was it there was no other aggravating evidence against mr parnell in terms of the penalty phase it seemed to mean correct me if i'm wrong or misreading the record that the prosecution didn't really make much of the tissue evidence during the penalty phase that was not the focus of the argument so you've got i think the best fact for to petitioner in this case is  parker from the tissue but you've got inconclusive findings with regard to the other stains or i know that there were multiple stains and some of them were consistent with mr panache but it just wasn't the focus of  penalty phase argument how do you deal with that of if i could your honor addressed that in two parts because you said i think there is a factual issue i'd like to clarify for your honor about the inconclusive findings but in terms of your argument about their comment about the how the prosecution use the evidence that the penalty i don't think they needed to present additional evidence if you if you read the prosecution's closing argument of guilt which the jury heard and inconsiderate is part of the nature and circumstance of the crime it paints a very graphic story a narrative of this crime that certainly carried into the jury's considerations that penalty but in terms of of the impact of the d n a results contradicting the sorolla just on the bed sheet i think it's important to note that the other five stains that were tested here two of the five not the victim contributed to that stain and if that's the same grouping as the other three which were inconclusive there's at least a prime a facial claim and i think what we're looking here at here is whether there's a prime official claim not whether we've proven the case because i think there can be testimony about what inconclusive means same grouping that's at least a prima facia inference that the other for all five of them excluded the defendant and i think we have to take at this point our experts testimony is true from their reports and they say there is no evidence of a mixture here on any of these items  results that he had had conducted they were inconclusive on the point and so he chose to go with the stronger evidence so i think that there's two items of evidence that that their life i think mr berman the prosecutor is around the other prosecutor who actually presented this evidence was actually admitted to be a pathological liar he was just broke from the bench i think that raises some red flags  its own i don't know but it raises red flags that this person is problematic in terms of what he's willing to present to official tribunal's but i think that the more critical aspect of knowledge here is the fact that trial the prosecution obtained the results and said on the record that were it chose not to present them for tactical reasons not because it didn't know what they said but for tactical reasons the prosecution chose not to present them now that infers knowledge at least so upon the face of case and it also is a red flag for to say ok something's up here maybe i should take a look at this and at least get a confidential report but i think that definitely infers knowledge the fact that they've got the results back and chose not to present them in combination with the of the problems with this with this prosecutor other statements can be explained so mr pradelle statements to the father if you look at what the father actually said immediately after the crime to the police in an interview he actually said that he asked mr canady see my daughter mr paul responded no why i at his mr canal statements to ronnie campbell the st damon he made was around five o'clock or so mervyn's he was working at mervyn's and he said i did something big they're going to find out they have him on tape and he told his mother to leave the house and so what does all that mean i think we have to look at the context here the day before this crime on the friday night he was threatened it's on tape he was mr husseini testified that he received a threatening phone call he thought somebody was out to get him and he received a phone call at mervyn's from officer barnes who was in his apartment and said there's a missing girl you were the last person seen with her that wasn't true mr can i was not the last person seen with her but he's thinking in his mind that he is being accused of something and it sent him i think into a tailspin he is someone with a history of going into acute psychosis he attempted to commit suicide at the age of four so this is someone who in face of traumatic situations does begin to act irrationally and made th comment in terms of the big thing he did that's on tape they he had tapes of sexual relationships with adult women in his bedroom which i don't know that he wanted his girlfriend to find out and so i don't know if that's what he could have been talking about when he mentioned to campbell that they have me on tape they didn't find anything and everything evidence of a crime when the police actually saw those tapes they saw those tapes of other women there wasn't any better than it's on those tapes and then you look at us eight minutes to miss campbell the morning after after he pena they set me up to look like i did something bad i wouldn't hurt anybody they did something bad this campbell that didn't come out of trial ms campbell says something different but again i think what we're looking at here is how this case could have been litigated had that falls  evidence not been presented to the jury and this evidence about miss campbell statements to the police which i think the bottom line show that he did not confess to this crime and was thinking he was being set up by it by they or somebody else could have been cast in a different light at least when we all indications are that the california supreme court was applying a moron or is prejudiced standard at the time it would it resolve these claims that it should have been and i think we've we've explained that this case was denied in two thousand and six and then again in two thousand instructed us that we need to look at state precedent and assume that state courts follow their own precedent when deciding what materiality standards they apply particularly when you have a summary denial here and we don't know what they were doing here but we can assume that they were applying this less on prejudice standard i'm sorry more honors prejudice standard to the new who claim than they should have because in two thousand and four they cited this people versus watson case fifty four california case in the and this court's opinion and our this is virga i think explain that and then i here so i think we need to look at that as when we look at materiality for the men in the pew claim why do we have to look at the case that could have been presented can't we look at the case that was actually presented so in other words you reference police reports and you they say that that's more favorable than the actual testimony that was presented at trial this is what the jury heard so to the extent that prior statement could have undercut the witness's testimony on the stand the fact that the evidence was presented didn't prevent counsel from exploring that on cross examination didn't it is not your honor i think that's why we have a separate ineffective assistance of counsel claim about counsel's failure to prepare for this type of defense and i think the other point is when you take away the false evidence here that direct link there might have been a different effort of putting up a rd party defense here in this case that was was not pursued because of counsel's foregone conclusion that we don't need to deal with guilt evidence here we're just trying to settle this case and i think us versus bagley which is a brady case talks about you know when you suppress evidence you have to look at what the impact of that suppress evidence would have had on the fence preparation and i think we should do that here too i mean when you have a  and he said hey i'm trying to get my client to settle this is this is not something we should be fighting at because he didn't know what these results meant but if he didn't have that view and understood that the sorabjee was in fact false i think some of this evidence much of this evidence could have been presented in a different way and that's why the presentation of false evidence is so so harmful to a litigant and why the prejudice and it is lower because we it's so destructive to what the jury is actually hearing the truth of what the jury is actually hearing resolving i'd like to turn now a little bit to the the germans condo claim and that claim a again a juror reached out to a preacher about the matter pending before whether it is to seek life or death that preacher gave her a biblical circuit addressing almost the exact situation with contact with the preacher said so and farms were says joiner and there at least needs to be an evidentiary hearing on that claim and i think you do indicates that that energy hearing is actually for the benefit of the state to rebut our room that's our own religiosity and morality we're dealing with the jurors contact with a rd party which puts this case into a different category of clearly established law which is remember says united states it's not so much about her considering her own morality as much as her contacting a moral prosecutor should out of prison and that evidence about the tissue paper stain and nicole being a possible contributor or at the very least we should make sure the jury knew that ultimately she was excluded as a contributor to that state but argument is that had the jury known those facts regarding the tissue paper stain the result of the trial would have been different that's the say that there's no reasonable likelihood that the verdicts on guilt or punishment would have been different that's because on the tissue paper the import of that evidence is that it showed the mixture or purported to show the mixture between the mixture of the cold saliva and petitioner's semen but if it doesn't have nicole's s it then and then that evidence really becomes kind of the purpose is it's a tissue paper that was found in his trash can so whether it could have possibly been related to someone else it doesn't have anything to do with this case and it's probably evidence that would have been there shouldn't have really been puzzle when you try to put it together in the way they put it together was she's getting into the tissue while she's on the bed and that's how you get the spots on the bed but you know if you take out the tissue then you still get sarin th instead of the one stain on the tissue that shows or that's consistent with being the product of oral copulation those two things aren't necessarily real the tissue paper in the bench you don't necessarily think the prosecutor did try to make that link an argument but that was i don't know a guess based on what they thought or how they were presenting that tissue paper evidence but there isn't necessarily a lender where there lie if the remaining evidence renders this false or misleading evidence in material as you argue today why the prosecutor had to knowingly put on false or misleading evidence in the st place i don't know why the prosecutor did what he did i mean i have no idea i don't know why you would perhaps he believed that it's the remaining evidence wasn't so overwhelming so he i just i don't i don't know that i don't i don't i don't share the opinion that this role jevons was all that strong to begin with i mean that's something that i think even the trial court recognized because you do have the you know the a in the b match but of course it matches other people and that was evidence that s going to win this prosecutor had d n a evidence that he chose not to use whether it was because it and her cat the sorority evidence he was putting on or or what i mean there's an argument there but i mean he had the actual d n a evidence so he knew what the truth was correct and what we have on the record is not not that particular prosecutor who present that evidence but the main prosecutor he said that they were not present in the d n a evidence for tactical reasons and he didn't really go into explaining that our take on that is that this or ology evidence did support the connection between you and nicole's visibility with regard to the oral copulation can conviction as opposed to the other ones such that you know the d n a evidence isn't adding anything because those results they either included or they were case before the california supreme court because materiality is has to be established and that's something that that's the basis upon which we believe the california supreme court denied the claim because if you go conviction by conviction looking at the oral copulation conviction view you take out the tissue paper evidence and then you look at what else you have we have the bed sheet we have multiple stains we have the mixture there there was there was found to be not true that allegation murder so with regard to the oral copulation conviction that's supported by the bed sheet evidence which is stronger than even the tissue paper evidence because you have that dilution and you also have multiple stains and you have that pattern that more testified was consistent with being the product of oral copulation and then it doesn't go to foreign injuries in my foreign object that was mainly shown to physical evidence with this crash and that's the laceration the anal area and other physical evidence like that that wasn't the mixture doesn't go to that isn't that a little and consistent for the jury to find the underlying conduct of oral copulation but not to find it as a special circumstance  that was a claim that was in fact raised by pienaar on direct appeal and the way the california supreme court resolved that is they they felt that the jury could have found that the oral copulation occurred the didn't occur in the context of the murder as to the special circumstance so there was oral copulation but the murder didn't occur during the commission of the oral copulation instead it was during the commission of sodomy and the next i thought i heard counsel say that with regard to the s yes but they mean they didn't say nicole was excluded which is something you would expect them to say they said that with the growth of that issue paper that she was excluded she wasn't excluded from the bed sheet stains and the same with regard some of the other issues i think councils raised about the relevance of the tissue paper evidence but going back to the other convictions and the materiality on the  regard to this is your paper evidence it doesn't go to again the sodomy or the penetration by foreign object as those are supported by other evidence and which is paper doesn't go to that and again as judge owens mentioned there was an oral copulation special circumstance it was when you go to the special circumstances and then also with regard in some sort and even in closing argument although the argument focused on the nature of the crime they didn't really go through the  particulars of the crime i mean they kind of listed out these are the things that occurred well with regard to the tissue evidence it allowed the prosecution to paint a pretty powerful narrative as to how the crime happened  and the details were just incredibly graphic why did not have a material effect on the on the sentencing phase given that the materiality standard under no who is not the same as for example prejudice or harm or harmless error analysis right but still it has to be a reasonable likelihood of a different outcome and so as to punishment you know that is the narrative and that's the that they use the tissue paper evidence in the bed sheet evidence to to because there's powerful evidence of these other crimes the sodomy and the prince ration by the foreign object and you know i suppose they didn't really go into maybe painting the picture of how that occurred but the physical injuries on that's correct so i misspoke i meant lewd acts so yes penetration by a foreign object is in a special circumstance it's lewd acts which is any touching that's intended to arouse or gratify well it's a rather broad category of things  so yeah they didn't paint the picture with those other often says but i think that there's a whole evidence in of itself paints a rather dark picture of what happened to nicole i don't think that the oral copulation narrative added so much to that when you have again the marks on her face from the fingers and mike her mouth being held close and the marks on her neck from that could have possibly led to string of ration although there's an issue with that i think that's that's plenty for the jury to to have in their head about the gruesomeness of the crime that the oral copulation narrative didn't add much so that the tissue paper evidence wasn't material  i think that's all i have a manipuri claim that the california supreme four could have rejected that claim or recently rejected that claim on materiality finding that the d n a evidence except with regard to the tissue paper that it wasn't it didn't show that the evidence was false and then even with regard to the tissue paper showing that it was false that ultimately when the made a difference in the outcome on guilt or punishment thank you your hon those show that the victim was a limb unaided is a contributor to two of those stains on the bed sheet and again i think when you're looking at a grouping we're talking mr in men's report the other point i think is important that was raised by responded is is the other it is the lack of direct evidence here and she mentioned scratching they tried to develop direct evidence between mr can on the victim other than this false role gee they took swabs  also have the fact that there was no semen found and i think respondent suggested that there's this acid phosphate on the on the slide that was semen but mr mr moore even testified that it's clear that he couldn't find semen because for semen to be present there needs to be this p thirty protein and that wasn't