this case is whether trial counsel can be considered effective when she knowingly presents false testimony in support of an alibi defense and constructively prevents the defendant from testifying on his behalf where's the evidence that she he lets counsel know that he is finally willing to come clean essentially and tell her the truth about his involvement in in this crime and his  presence in the cell where the killing occurred in that letter he does not mention the witness garland and that's what respondent and the courts below took issue with they said that doesn't show that that counsel was aware that garland was going to present this false testimony but i think that is isn't that an undated letter from the petitioner that doesn't even mention girl it's true it is undated it was found in tribal councils files along with four other letters that were in the state he views exhibits while there is no date on the on the letter in petitioners declaration which was also provided he states under penalty of perjury that's all of this took place prior to trial as they were preparing for trial and essentially trial counsel had already prepared to present an alibi defense and seemed unwilling to change the approach of the defense  it's it seems like there are a number of indications in the record and in the letter that you're talking about that he sent to mrs try to show that he was not being truthful to mrs trotter it seems to me that you know your client was sometimes withholding information from his lawyer at least provided at least in my view confusing stories of what occurred with respect to this this murder  mr hampton and it i think it might be fair to say that based on the uncertainty trial counsel you could have made a tactical decision to go with garland as smiles was had a long history of drug and alcohol use was through this very traumatic experience where he was shot eight times by the los los angeles deputy sheriffs in relation to the grand theft auto case that found him in the l a county jail prior to this murder occurring so he was very frightened because when centrally i believe it is african american gang members who did not like his tattoos that he was white that he was put into a pod and so through all these traumatic events the past history of alcohol and drug abuse  he was very frightened about coming clean with his trial counsel how did i'm not sure that helps us here so i apologize for the length in getting to my point here but  point is he was frightened about sharing this the actual information about his involvement in the crime with with trial counsel because he didn't want to go against any of the co defendants cases when he finally decided to tell the truth and i make this point in the brief in the briefs i think it's pretty clear when he's being truthful because who would admit to being in a cell believes is kelso's put on a false witness that has the witness giving false testimony couldn't couldn't my wrong in thinking that as a defendant he has an absolute right to insist on testifying himself and he could have testified i don't agree with that witness i was i was in the cell yes that's right so so you can't really blame that all on the council because you have control of his ability to testify yes your honor i i understand the the question your honour's is posing is that it was up to the defendant at the time to essentially assert that right and his reason for not doing so was that trial counsel very definitively told  as was mentioned in the declaration that he was not to testify because they were going forward with this alibi defense and it would blow you know a large hole in the alibi defense and so mr smiles believed that that was it he didn't have an opportunity unfortunately as we know the defendants often don't know their rights within the courtroom and don't know that they actually have a right to address the court and ask  assert their right to testify and this was a case in which he thought trial counsel was running the defense she said no so he was then unable to and then of course thank you that that's a comprehensive answer to my question i think i think there were in the letter you're talking about that i think there were at least two references that that your client made with respect to whose ultimate decision it should be on how to proceed in light of all the witnesses including garland hit what he was telling her i think he said ultimately it's your call to mrs trotter i think you first do it twice that you know he's going to defer to this point but i want to hear from you can explain that away from me again your honor i think it goes to judge gould's point in that if if defendants really were aware of what what aspects they control or what rights they hold in the adversarial process we'd all be better off and we would see as many of these issues pop up in these cases but as you pointed out in the letter  also believed that trial counsel was steering the the case and so he left it up to hurry he deferred to her over and over and said you know this is your your decision  but he thought that if he let her know that i was in that cell when the murder occurred that there was no way she would go on to present an alibi defense which she knew to be false performance and if so what's your best authority for that well i believe that under stricklin and mix me whiteside it's clear that the but it's never acceptable for trial counsel to present false testimony and attempt to deceive the court if if trial counsel knows that a witness will be that that the supreme court has addressed the duty of loyalty to the client but says that that stops at that point where you are going to deceive the court an committing an ethical breach i have two questions for you right to me and first question do you have any case law that supports that he defendant's right to testify can be violated as it was in this case as you a e in direct manner when he was not in my view actually prevented from testifying and secondly considering the other evidence presented against the petitioner how w with the outcome of you're yawners to be first question i could not find a case directly on point that which i think is a good thing  because hopefully there aren't too many cases where a trial counsel is committing an ethical breach like the one in this case but the seminal case rocky arkansas the us supreme court case i think is similar in a certain sense it was a manslaughter case where the wife shot her husband the defendant the wife underwent hypnosis to help her recollect  events and the arkansas court held that the closed hypnosis recollection was not admissible in court the supreme court ultimately ruled that that violated her right to testify  in her in her own defense and and went on to state all of the different ways in which that right to testify is protected under the constitution the different amendments  here mr smiles was told by trial counsel that she was presenting this alibi defense so essentially he was presented from tests or prevented from testifying as judge gould pointed out he did have the power to address the court and ask that he be able to testify one he didn't understand that right and you know let counsel know that she was steering the ship but to there wouldn't have been i mean he was essentially constructively prevented from doing so because there wouldn't be much point in doing the d a s work for hand by offering a completely different story than what was just presented by defense counsel argument here that she was deficient propelling to discover that there was an error in the plea extended to mr smocks based on that correct instructor assumption of the prior strike and it seems like she may have had a duty and what's your response to that because it seems like any plea offer would have been contingent upon all the co defendants accepting the police so yes and your honor i responded pointed out that you know the district attorney and the state court relied upon the district attorney's assertion that no formal plea offer had ever been made but i think that's really getting away from the point that there was active had a plea agreement to testify against his co defendants so there is an active sort of negotiations going on no formal offer was ever made but mr smiles his assertion is that trial counsel had a duty to investigate not only what strikes he had or did not have but his mental disability as physical disability all of these things that could have been presented and helped in the   i believe that had she continued to negotiate with the other parties and with the district attorney they could have resolved  at least a twenty two year settlement as the killer robert when had agreed to and i do believe it was prejudicial not to pursue those settlement negotiations thank you thank you the morning your honour's the court deputy attorney general douglas wilson appearing before a pelley respondent in examining the performance of prong and strickland i think generally speaking it's safe to say that reasonably competent defense counsel are often faced with the situation where their client has told a story that they don't necessarily believe but they still have to put on a defense  i don't think there is no last or there is no law that says that i'm sorry a precedent that says that a defense counsel has to believe her client in the situation of dick's versus whiteside that deals with the something that's very different from what we have here that's where the defense attorney subjectively believes that their client is going to commit perjury and what they what they need to do to take care of the situation  here this is not a case where defense counsel knowingly presented perjured evidence versus not presenting the truth i think as  as the court has pointed out that actually you know the first version that mr told starting in may second one thousand nine hundred five to law enforcement was that he wasn't in the cell that he was never you know that he wasn't involved that continued all the way to two thousand with it and it was consistently telling the story to his defense counsel and on the eve of trial right around the time i would be he was representing himself was thinking about how could he explain away his fingerprints in the cell and parent me throughout the idea well maybe i'll have to tell i'll have to testify and tell the court or tell the jury that we were there so then that's when this second version came about but i think as judge mcgee have pointed out the letter was couched in tactical terms he said it's up to you you know you can pick whichever defense that's talk about the letter love it because i do have questions for you and i acknowledge them and greet that does not mention mr garland by name but can't we infer even without indication to mr garland's actual actual name that the truth that mr by name the story in the mosques letter to the attorney does present a very different version of events that than what mr garland ended up testifying to so i mean the lawyer had to realize that i think you're right your honor that there is an inference that could be drawn from that but i think the basic question at that point in time of the trial is what  absolutely nothing to do with the crime when you look at the white prison gang culture and you look at how how well this crime was executed how it was planned how it required three people in the cell how it required people in the cell next door to pass you know clean the clothing and wash the meticulously clean up the s the version of events i think a defense attorney could certainly you know question the veracity of that so you know when we're i think that you know we're really kind of stuck with our defense counsel is really kind of stuck between a rock and a hard place to you know as to what to put forward we have a statement from the prosecutor in the record do we have anything from defense counsel no your honor there's absolutely nothing from defense counsel as we pointed out in our in our briefing that any of appellant statements in his self serving declaration dealing attached some letters to it she said that she had contacted defense counsel and wanted to interview her with it with an investigator present and in one of the letters advised her that she should probably have counsel with her as well so apparently mr trotter told mr dodgy that she would answer questions in writing but wasn't willing to do a interview and then that's  the heaviest counsel said she didn't think that that was going to be productive and just drop the whole matter so we really have no idea what went on between us once i do a little thinking just as a question related to this is there anything in the record that tells us whether there's been any bar discipline proceeding relating to this alleged suborning approach or there's nothing in the record your honor i checked the state bar web site a few weeks ago and as i recall there's nothing there's no listing on the public web site of any disciplinary action  performance the supreme court in next specifically said that an ethical behavior by trial counsel is not per se ineffective i think we have to really look at it on a case by case basis and specifically here you know we're you know we have twenty twenty hindsight where we have you know the you know we know what has occurred after trial but at this point in time when mrs trotter was preparing for trial she had this situation where the tester had given her two different tactical approaches and she had and she had to pick one and we i think going to judge  appellant would have understood that he could communicate with the court he was very good at writing letters and so i don't think anything kept him from communicating from the communicating with the court that he disagreed with his attorney i think ultimately they agreed to go forward with this with this defense certainly a reasonably competent attorney would counsel would have invested in the defendant's criminal history at the time and that clearly wasn't done here in i think there's a good argument that was deficient performance my question  is whether or not there's some reasonable probability that but for counsel's error in not realizing that it was just nice to not have a strike which was not insignificant that the outcome would have been different he'd received a better plea offer i'd like for you to respond to that you are just respectfully disagree with the deficient performance because of the fact we don't have a declaration from trial counsel and we don't know when she learned of the fact that he didn't have a qualifying prior strike we do know from the declaration of the prosecutor and that declaration was not submitted in the trial out with the declaration from the prosecutor he was very clear that he wanted it had to be a package deal he wanted a factual statement from all the all the parties he said  that some of and i this is also on the record during the sentencing which we've attached to our further supplemental excerpts of record that some of the parties didn't want that much time some of them didn't want to give a factual  basis for the plea and the prosecutor specifically said given the brutality and nature of this crime there's no way he would've ever accepted an eleven year plea he said that pretty much basically what he was left with was a plea to second degree murder with a sentence of fifteen indeterminate sentence of fifteen years to life and i think we know from the letter that  the letter that appellant sent to the trial court and i think there was also a letter that he sent to his trial attorney actually that was a letter he sent to this trial attorney where he said that you know there's no way he's going to take twenty two years and certainly there would have been no way that the appellant would have accepted an indeterminate life sentence i just i just don't see that in the cards and i don't think i would suggest that well especially with respect to the plea bargain issue we have evidence that was presented only in the california supreme court so that's that's the prosecutor's declaration  this is a different procedural situation from this court's cannady case where this court said that the looked through doctor and survives post rector but in that case we had claim presented to the california court of appeal that have three justices that did a reasoned analysis and then it went up to the california supreme court and they did a silent denial here we have a very different situation that it started in the in the sapir a court where we know the superior court has slightly less resources than appellate courts and less time and then once we got to the california supreme court they asked for additional they asked for an formal response from us we fully briefed all of the issues we provided many attachments toward formal response and then they were allowed to provide a reply so it's a different situation so i think you know it distinguishes it from the canada case and we should be applying the rector situation where we look at whether what is reasonable of the adjudication and it's just more out of curiosity here it seems like the state here decided to prosecute an issue or their strategy was to give the most culpable person the least amount of  time i'm just curious about that do you know anything about that i mean i do know you have that you just described it as a most brutal crime and the most person wrist with responsible for the most brutal part of it got the least amount of  like seventeen years ago but i never asked him that question we know that when your honour's points out is the most culpable person he really planned this out this was a sophisticated plan as i've as i said you know required the three people in the cell and you know i just i can't explain that but with just a couple seconds i have left if i could just touch on prejudice for a second given the physical evidence in this commission in this crime the statement he gave to steve r c admitting that he was involved i just don't see how it was reasonably probable that appellant could  prior conviction it was not just grand theft it was actually assault with a deadly weapon on a peace officer they would have gone through again all the tenants of the area and brotherhood and the nazi low riders they would have gone through all of his tattoos that have  defense as far as the look for look through analysis to be none of maker i would point out that the u s supreme court heard oral argument october thirtieth and that case is currently pending but this court in every court except a bare majority in the eleventh circuit have continued to use the look through analysis and then finally as to the prejudice analysis  agree the crime was exceedingly brutal as you know many of these prison related killings are but i think the point is if mr smiles had been able to testify about his physical disability his mental disability and his presence but not participation in the in the crime that could have made a difference to at least one juror thank you thank you your hon