morning everyone please be seated we have a few cases that were submitted on the briefs the st was moved on versus arnold that case is submitted the nd was s c n versus piri that case is submitted as well we're going to go in the order of the advance sheet today and the st case that we have up is gibbs versus the grant and counsel you may p analysis so this case really comes down to do that a supreme court unreasonably apply stricklin as far as the prejudice prong goes there's a slight argument contrary to what the primary thrust here is that was and is a reasonable counts was the fisher performance but they find it because there was evidence was overwhelming that this error wasn't prejudicial and it's that aspect of the opinion that is crucial for this appeal and what i intend to challenge here the prejudice in this i'll come or impact on the jury's deliberations here we're talking about three counts out of thirty counts of conviction the three drug counts the rest of which are not at issue with the other counts which involve the admittedly quite horrific sexual assault and lewdness counts so we're looking at a period of time that tape here which was with the d a relied almost exclusively to prove up the sexual counsels made six years before the alleged manufacturing evidence so we're talking about it a temporal gap here of many years i mean there's no question that these were completely unrelated events that he just haven't been found in proximity of the drug manufacturing evidence trial the majority of the evidence of the eight percent as i said was this tape and this tape is actually three videotapes that if you look at the record i don't think you have any problem convincing us that the lawyer should have seven asked for a severance i don't think you have any problem with this that he pulled the big grand that's not rocket science that's just true but that's not the problem you promise a case is the great deference we give to the state it's a state problems we see it and so our law pretty well requires us to who are pretty much a straight hand and soft now what case would you a lie upon with the facts nearest to this that court of nevada the supreme court know that there's no question the epidemic or insist formidable but one of the reasons why i began the beginning of this argument with the observation that i don't have to to concern my argument on the official performances because that's where the double deference you hear so much about ineffective assistance comes from here when you get to the present the reason why there's double deference for deficient performance is because it's presumed in general that counsel performs effectively and then you apply the layer to it here prejudice there is no st presumption we just have to apply now i completely recognize that at the differences formidable is probably the highest standard in the law that i know even higher than the reasonable doubt standard so i except that no reason to get that complication but that is what is on a reasonable this idea that the evidence on the three drug council is overwhelming well it sure looked overwhelming to me tell me why it's not overwhelmed that's a great question and the nevada supreme court the district court we see the acts of surrender time and time again they rely on the fact that our client allegedly confessed to the crime at the time the search warrant was executed at home too and this was a detective martin and this is the important part of the record on page one hundred and eighty five thousand two hundred and eighty eight which is the cross examination about whether kids actually did confess to the crime and if you read it and parse through it it's apparent that he really didn't know what and martin basically that he doesn't know whether is do you sin or gives do symbian the codefendant who actually testified on my client's behalf saying he had nothing to do with this manufacturing which is powerful but they didn't but he was didn't that get a judge addressed again on the redirect where he means that he must have had something do with the manufacturing but remember the manufacture in this case it's not out in the open there's not like tubes in and beakers and bunsen burners everywhere this is all locked up in a safe i mean i'm sorry in a suitcase and or oil that was found not certain if it was in the suitcase or not there's conflicting evidence about but the point is that you could of walked into this bedroom and not have known that there was a manufacturing operation going  on in fact the state's expert said that this was not an act of lab that had been dismantled and put inside of the suitcase that was closed that they had to open it which by this material but so the most powerful piece of evidence against my client were that the in the same closet as a suitcase and that he allegedly confessed and as i said the nevada supreme court will be costly reference to confession the district court said well the most powerful evidence against does just not appear to be the case but it was a it does not appear to be the case and you're talking about somewhat unclear or nuances in the testimony you know the trier of fact didn't look at it your way and there are certainly evidence in the record to support the guilty finding right but let's look at what the trier of fact found here as i was getting into this is a day and a half trial the video that they played for the jury was an hour and five minutes and this was a video that was cold from the three videotapes just show the sexually the sexual assaults in the sexually explicit conduct with these young children just an hour and a half out of a day and a half trial in this jury deliberated for two hours and forty minutes maximum on thirty three counts thirty counts against my client and so if you look at this record there's a strong air france that the jury was in was just heated by this videotape i mean it's hard to believe cogently on thirty counts they just came but in less than two in two hours and forty minutes although the judge said i'm going to feed you lunch st so it's unclear how long they deliberate you have a case that will support you that we could just say to write an opinion based upon how much time they were in in their deliberations and how many issues they had what you closest case that says we can overturn especially under strickland analysis with the reason why i bring up that evidence and no i don't have a piece directly and point there i should i wish that i did but the reason why i bring that up is that what i'm trying to get out here is that the prejudicial impact of the jury having to watch this video and all this extremely prejudicial evidence which was there was overwhelming evidence of guilt on these other twenty seven counters no question but that there's a jury of peers that been tainted by that would any objective jury would have been tainted by it and the trial evidence supports my  my point is if you don't have a case in your broad research in preparing for this argument preparing the case becomes even close to allowing us to do it how would we be able to just pull that out of the air we usually go it's a system of good morning to me please the court my name is natasha gabriel on behalf of respondents appellee your honor is this court should affirm the district court's order because gibbs cannot demonstrate that there was a reasonable probability of a different outcome at trial the the main point here is that there was overwhelming evidence of guilt on get on the drug charges without even getting into the sex related charges it is there was there were multiple jury as the ultimate arbiters of fact heard multiple instances where they could connect gibbs to all of the counts that he was convicted of and therefore you cannot he gives cannot show that the jury would not have convicted him had the severance went through and had the trial been severed in harrington v richter the supreme court noted that there needs to be a reasonable probability in that the likelihood of a different outcome must be substantial not just conceivable gives can't show that there was a substantial probability that the outcome a trial would have been different i mean let me just ask you a question i don't think there's any talk that mistake was made here trying these two cases together is just not following what we usually think was a fair trial so you start off with that you go facing you that there was a really serious mistake here now i understand also that there's a lot of deference paid  you have a case that helps us sort that out have so do you what is your best case to support your position your honor i would point to both of course strickland and harrington v richter so in strickland yes it's true that the nevada supreme court found the st problem but strickland also explicitly says that we have to find both prongs in order to obtain relief it can't just be one and then harrington says that he b s corpus is a guard against extreme malfunctions in the state criminal justice not just a substitute for ordinary error correction and what the what we're describing here is an ordinary error yes it's true that the the trial should have been severed that that council should have moved to sever that it's not in more than an ordinary heiress a catastrophic  that if i understand your question your best offense is on strictly an application with strickland correct your honor so the prejudice prong is what what we would focus on and you have to show a reasonable that the a reasonable probability that the trial that he would not have been convicted of the drug charges had there been a separate trial and that's just not the case here there was an overwhelming amount of evidence against gibbs on the drug related charges and the jury heard heard dusun testify that he that gives didn't know of the drugs so there was that evidence presented now the jury waited the detective evidence that said gibbs had confessed and they way do sins do since testimony that he gives didn't know of the drugs and they determined that it was the evidence was strong against  beyond a reasonable doubt that he was guilty of the drug related offenses and gibbs i would like to clear the record get detective martin did specifically testify that gibbs was part of the confection confession i would point to excerpts of record page one hundred and eighty eight dollars where the prosecutor is questioning the tect of on the confession because there was a little bit of confusion they were interviewed together but there is testimony that said and did he say in fact that he had access and he could go back there to help with the cooking and detective mark martin testified he did so there is testimony and evidence that gibbs in fact did confess and then you have the safe that was right next to the back box lab a reasonable trier of fact can connect the safe to gibbs because he st said to detectives this is my safe then he changed his story again the jury is hearing all of this they can weigh whether whether gibbs was for you know whether which was which one was truthful was it his safe wasn't it it was his safe because now we open it and we have those videotapes depicting gibbs and then you have three paraphernalia kits too and just messing meth and fed him in also in plain view in the master in the master bedroom we have this is not just in a box lab as as petitioner is claiming in plain view in the master bedroom and this excerpt record page one hundred and seventy four you have pipes razor blades and mirrors typically used in the production and use of math then you have gibbs's work badges and mail addressed to him in that same bedroom or again a reasonable trier of fact could make the connection could make these reasonable connections that gibbs was in fact he was involved in the production in the use in the trafficking all of the all the all the charges that he was in fact convicted of let me ask a question have you responded the argument counsel made that because this was a very complicated case with a lot of of course there's no that that's a statement there's no case involved but in fairness to counsel would be your response to his argument i would say your honor that it's actually not a complicated case the sex charges although there were numerous sex charges we have here unlike other cases an actual video depicting gibbs of these heinous crimes so that that  was quote unquote quick because you have the video the video is shown to the jury that's it they don't have to deliberate a lot maybe on those portions however you have then you have the drug charges again this is not very complicated you have detectives that said we have we had an anonymous tip we went into this house we were allowed in we saw up in plain view paraphernalia all throughout the house then you have the testimony that they obtained a search warrant they searched the house they found this meth lab it's not very complicated because this is not an investigation that spanned weeks and weeks and weeks and weeks and that needed witnesses more witnesses the foundation you have the one day and you know the short amount of time where detectives went in and law enforcement went in and found all of these items so that's likely why this case was shorter and didn't need as many witnesses and likely why the jury did not deliberate for long because again we have the sex charges which you know likely stated that there was overwhelming evidence so that was probably didn't require a lot of deliberation and i'm speculating here but could i ask you obviously you didn't try this case the attorney general takes over it's a local prosecutor yes you have a mechanism for getting word back to them that they shouldn't do stuff like this i mean the prosecutor's job is to see that justice is done not just to win convictions and subjecting a defendant to both these charges in this manner  just ineffective on the part of defense counsel in allowing it but well it was improper for the frankly the the prosecutor to to seek to do it this way could you please let them know that that's the kind of you know we don't have ineffective assistance of prosecution but they need to know sometimes that they've made a grave error and should not repeat it again would you please convey that to that i will do my best your honor to convey what you said today and i'm sure they do watch a lot of the oral arguments they do have an interest in these cases so i'm sure they're hearing you now but i would just submit to the court again i'm speculating that had the charges been severed and this is maybe why the prosecution didn't move for severance that evidence might have been cross admissible now the u s district court didn't necessarily agree with that argument and i recognize that but it could have opened the door with the way with the way that they would have had to lay foundation and getting these tapes and getting these getting the drugs and the safe and connecting gibbs they might have it might have opened the door where actually in a case where the drug charges were severed the sex assault charges might have come in as well and i would submit that to the where i see my time is out and for the reasons that i've stated i asked that this court affirm that u s district court's order  with a lot of questions at the end so we'll give you one minute to just wrap up please i greatly appreciate it one further point that casts some doubt on the gives confession detective martin on pages one hundred and eighty five thousand one hundred and eighty six he talks about how he basically overheard this alleged confession and that detective fletcher was the one doing the questioning but when detective fletcher's takes the stand he doesn't say anything about that in fact he says the only thing that gives told him was that he admitted that the safe was his and this is on page t six and he goes on to say that then gives invoked his right to counsel and refused to talk to him so once again and now detect image we never recorded this alleged confession and what he wrote in this police report was not a confession so a year or so after this event he now is trying to say that gives confessed when the evidence doesn't support that and i would just and nor does it really his statement if you look at what he wrote as police a statement he is what he what happened is that emitted allegedly they had access to the bedroom and he drew the n friends that because he had access to the bedroom he must have been involved in the lab that's different than a confession different in strength and probative value thank you m