michaels the issues that i was hoping to get to and this might be overly ambitious is i was going to start with the i a c claim regarding what what's been called the public note i was then going to discuss the miranda claim i was going to try to and beginning with that i see claim on the pop that note i did want to start here because i think that there is a recent supreme court case that's that's important to look first at davis and that case was decided after we submitted our opening brief but we did rely on and yet clear whether that's a problem well that's that's correct there we had a dispute about whether procedural default applied it was our position that first of all the the claim was out of what we presented on the direct appeal because in the itself the supreme court stated that there are certain ethical obligations that it and it duty of loyalty that a attorney is required to comply with which would obviously include the the attorney client privilege and  a guidelines make it very clear that the most fundamental yes precept of the of a criminal defense function in both capital and non capital cases is maintaining the privilege and of course the supreme court has consistently relied on the a b a guidelines and the next two lawyers while there were still representing mr michaels you know regularly seem to be the ones responsible for giving it to the prosecution is that accurate that's correct the see claim close to all of that correct that it's just all it was the initial disclosure was to the trial court and to the lawyer the other defense lawyers in the case and then the subsequent follow up disclosure went to the prosecution we think they all were it was all ineffective assistance it was all deficient performance to violate the privilege to let you know a confidential communication to the lawyers to be divulged the process in the california supreme court said that that even under the subsequent rule that it still would have violated the privilege because they didn't discuss the matter with with mr michaels beforehand there were other measures that could have been taken before disclosure so but that rule didn't apply any one of the measures measures could have been taken closure in order to maintain security if there are things that we do all the time is defense lawyers where you could go to the marshals or go to the court and simply say listen i think there's a problem with these laws with with the defendants there they should be separated i can't give you the exact details but there is need to separate these these two we think that that would be the in the best course of action and if first see what the court will do perhaps the court will say ok i got what you're saying and will separate them but there are certain steps along the way that you would take that are reasonable and none of that would have mattered had it not been for the fact that the stuff misled or given to the prosecutor right well correct i mean that it was a real problem it's not really getting up to the judge nothing happened as a result of giving to the judge that was prejudicial right and we think it was ineffective to allow it to get into the prosecution's hands i mean you know both steps of the in the process were deficient performance at what about pensions ok if we get to prejudice in it why start off with box versus davis i just want to just briefly set out what happened in book because i think buck was a more aggravated or at least a stronger case in aggravation and where the supreme court found prejudice under the stand in blocking the defendant shot and killed two people and shot and attempted to kill a third person so we have multiple murders one of the individuals that he killed was a mother and he actually shot and killed the mother in front of her children who were begging him not to kill so you can only imagine the victim impact situation in that case where as here we had absolutely no victim impact evidence at all the defendant in that case had prior felonies and had served prison time now what would happen in the future danger evidence that was allowed in that case is that the defense called a future danger expert who generally gave very favorable testimony to the defendant and said that he didn't think the defense will be a future danger in prison but in very brief testimony he did state that that black m are statistically more likely to be to be a future danger and the fandom in that case was blocked there was a brief question about it in in a direct and then a brief question about in cross and that was it no no closing arguments about certainly race has a you know it has a special i guess consideration but i do think that the things that the supreme court said in that case are helpful that you know it doesn't matter how much air time particular issue gets in a case or how many pages of transcripts it's discussed although in this case there was a fair amount of discussion the entire rebuttal was about the pop the no the prosecutor emphasized approach the topic note in his closing arguments  like this and in his career and in closing argument the prosecutor specifically said his favorite witness in the whole case was charles duff i mean this this this was emphasized heavily and you know i think jurors i mean we  a study that talked about how jurors who find that this fence will be a future danger in prison over eighty percent of the time vote for death whereas jurors who find that the defendant won't be a danger in prison over eighty percent of the time vote against the death penalty  this is a major consideration will this defendant harm other prisoners and for the jury to hear that while this defendant has a capital murder charge against him when he's got everything at stake that he would be willing to cause serious bodily harm to his codefendant while he's in custody facing a capital charge jurors are going to look at that and say this is a this is someone who's going to be dangerous to other inmates he's going to be dangerous to guards and that's actually what the prosecutor specifically argued in his closing argument and so for all those reasons when you have a jury that deliberated this long at the penalty phase and when you have a case that is not nearly as aggravated as other death penalty cases where this court is river found prejudiced and reversed where there were multiple murders where there were children it's the lead opinion i guess that's the one that i'm not sure whether you can say which one i think that would be the one to control but in any event i'll i think there are different steps the court could take obviously we'd love the court to agree with us that it was out of what we raised on on the rect appeal if not we then have a series of arguments as to flaws with the california procedural default whether they're independent adequate in capital cases at this particular time that's a trigger date for this court said and hoffman fell for is one of the few cases that has sort of a unitary appellate process where the same lawyers simultaneously file a direct appeal quite simultaneously but virtually slightly after they file the opening brief i think i think it's supposed to be like thirty days after the reply or something like that they have to file the hades and though those supreme court cases didn't address that particular aspect of sort of the capital regime in california but then we also have the sure i mean i well i think the trick said that i mean it like you said it looked like this was a legitimate issue so we're because it was a legitimate issue we're going to send it back so they just record i guess there needs to be perhaps there should be some type of initial analysis questions on this point it's our initial position is that at the review doesn't apply because the california supreme court contrary to and in an unreasonable application of smith versus illinois look at the subsequent answers and conduct during the interrogation to arrive at its determination about the invocation and the supreme court made it clear and smith says ok and then they say you can start you can stop any question he says ok now that something like that and california supreme court says well that was only with respect to that about the murder of joanna crimes and so then he selectively invoked his right as to the murder of joanne clemmons but all that then they just proceeded to ask him about the the murder of jon klein is that was what the whole interrogation was about so if if that is if that is the interpretation that fell so what the california supreme court did wrong essentially was to think that he was only selectively in talking at that was into the story but it's not the entrance correct because he selectively invoked as to the  clemens murder and therefore the rest of the interrogation violated miranda and that's a that's a violation of clearly established rights and one president's on this ok we think i'll start with the penalty most importantly the other was not harmless as to the penalty because the prosecution heavily relied on in the closing it said it was one of the most aggravating horrible parts of the case it was one of the he played the tape repeatedly he also was penalty phase closing he also was allowed to get in mr michaels bragging about how he had killed all these other people which was totally untrue as part of the penalty phase presentation with that with the confession so i mean i don't respond as barely addressed the penalties the prejudices to the penalties and for all those reasons and again when you look at the closeness of the verdict with a three day jury deliberation a period of time at the penalty   the the error was harmless because he confessed to the special circumstances and the prosecutor argued during the guilt phase closing again heavily reliant on the confession that he confessed to all the special circumstances and of course the entire nature of the defense was affected by the invasion of the confession they were stuck with the confession that the confession had been kept out there there may have been ways to argue at the very least a lesser degree of murder as a second degree murder or perhaps manslaughter because this was heat of passion or something like that but when they were stuck with the confession you know that's what there was a lot of other evidence was the problem with all these people who are heard to say that he was going to go and commit this murder or in harm's way after when he did and so on so perhaps there would be to vacate the special circumstances or the first degree versus second degree murder but what we're mostly focused on the penalty right and that's our main concern and if and that's really where we think the the confession is prejudicial is asked in the panel and if there are no other questions on that i will proceed to the failure to relieve attorney richard grossberg i think there does need to be a little bit of a mr michaels actually had no problem with mr duff and wanted him to stay on the case but mr duff got off on his own accord for personal reasons mr burns on the other hand was saying things in court such as i don't have to do any penalty phase work up until we find out what the guilty verdict is and then i can take care of my penalty investigation after the guilty verdict which is clearly i a c and eventually the court and these are the lawyers and off of course ten months or so so now they've got to start over again but the judge wants to get the case to trial march chambers is appointed he's a relatively inexperienced lawyer not capital qualified at best under the county system qualified for low level felonies and despite the fact that mr chambers is he's seeking to confer with capitol counsel to the court says i'm going to appoint richard rosenberg the first at the first mistake and you know alice is is the california supreme court says that he was a capital qualified classics attorney that's just not true he was a class five attorney he was in class six so for that reason alone there was an unreasonable determination of fact the judge appoints mr grossberg although mr grossberg is just getting out of the hospital with him for hip replacement surgery which is a horrible idea because he wants the case to go to trial relatively soon and it's a lot of work in a capital case in grossberg himself admits that weeks go by before he even  mr michaels because he can't physically go to the jail the media so you can only imagine a client who is being told he's going to go to trial very soon he can't even confer with the with the lawyer because the lawyer is physically unable to do so for weeks and  nothing's getting done so you can understand his concern and why he wants to as things were getting time he was twenty games he was the things that were being done i guess that was as i should just get to the heart of the matter at this point are and the only thing the california supreme court ordered just a court found is that he attended defendants trial which is a good thing to do but is sort of just the tip of the iceberg for when you have a penalty phase potentially looming he worked to improve his jail conditions with not really clear what it is that he did but again a good reflect the attempts to interview the linda davis which didn't go well christina clemens who does also testify at the trial and then there are two penalty type the confession and michael's once right before he even assuming that's all the case the supreme court has made it clear over and over again that look this is fairly standard in capital cases that you have difficult clients and that's not an excuse that the a b a makes that guidelines make the blame is mostly on michael's but grossberg himself is saying listen i can't rise to the occasion i haven't complied with certain things that i need to do that i should have been doing these in meeting that he's at least contributing to the problem he's claiming chamber on effectiveness once you make that determination based on u s supreme court case law then at buzz out this goes away because they well i think the court i've got point is free to then evaluate under its own case law the validity of the forever waiver if if the analysis of the california supreme court includes an analysis on effectiveness that is contrary to non reasonable application at the point that they were to be in effect correct that's where we have this really bizarre situation where he was never actually appointed but he was running the operation but the st michael's presumably i mean what bothers me in terms things even if the client doesn't want but here it's that's not the case the client has at least an imperative to say i don't want you to do that or i insist that you do that so the things that he didn't do have one hold him responsible for them when michael's could have just done well that is true although chambers submitted a declaration saying he made all the decisions i understand that but in have to michael's could have said i insist you put my mother relieve the attorney and we have argued that you know for example that one of the remedies a court to say is if the if you should have if the threat a waiver was the fact that because you didn't have proper counsel that you can look at it as a remedy i see of the bizarre situation right in it i agree that this is somewhat of an unusual case and there's a thread that goes throughout this case and i think it's this mr michaels is is the common denominator for the for the a differences that occur in this case and i think we see it in in the interview with the police we see it with his interactions with the court and his handling of counsel and what i'm getting at is mr michaels is a very confident aggressive assertive defend and you can see that in his language with the court is the things that he does he doesn't take no for an answer so kind of even getting back i'll dovetail this into the miranda issue because it makes this point at the very beginning of the the interview when they ask him who he is and they they're just introducing themselves and saying we've talked to a lot of people and we kind of know what's going on his first response is so you found out i'm a mental case and there's laughter and crime to seize behind that statement  he starts right off in a position of slowing gauging it with the police officer on his own terms he's not shy he's not submissive in that sense so we know he's joking and to some degree in control of this conversation right from the beginning and then there's of course the reading of the miranda rights which is proper there's his clear sure no problem is answer to whether he's going to answer their questions again that those words exude confidence awareness of the situation he's not like well ok they are you know it wasn't silence it was sure no problem and then they ask him so if you know we're here and he comes right out with yeah murder i'm here for murder it will who he tells them you know join clemmons and what happened then that's when he says well maybe i should out and i'm going out talking about well i've shopped around i saw let's talk about her and ok but the hell i mean then he says ok that and the california supreme court says that he was selectively invoking rights as to protect a particular questions at that point and stops it doesn't go out and say well what was the question and acts as if that's not good enough but it is good and the question becomes the last question was what's your side of the story what happened and that's when he says i don't know if i should or without an attorney and he says they come on and they say if you don't want to answer that particular question you can stop in the time and he says ok that one so he has now said he's not going to answer well what her side of the story what happened or why is that the end of the story at that point as to anything it has to do with what her side of the story what happened  i understand that reading i that's not my reading it's the california supreme court's read well what the callous prints supreme court also said in the they introduced this conversation by saying that the defendant was oregon michel's was arguing that the statement ok that one was a request for counsel and it was an unequivocal search of the right to silence the next statement is we disagree so just it's not all right to silence and then what they say next right and what they say next is what you have indicated implies his response or it implies a refusal to answer a particular question they speculate perhaps the question asking what was your side of the story what and how they seem to assume that that's not a minor problem because they don't say anything more about it but of course it is  miranda well here's my answer that question i think they go on to describe a little more what happened what they say is and i think this is the important part they say just for full content here where he picked where he left off where he said what your side of the the supreme court said perhaps he was responding to the question what's your side of the story the supreme court then says the defendant did a right to refuse to answer any question asked that the question and come to a halt or request counsel instead he was showing that he knew he could refuse to answer any and all questions and would exercise this on a case by case basis i think that's the important finding there which is he was demonstrating his own where in this and understanding of his miranda rights and this ties into what i was trying to get up before with mr michaels  is he's not a submissive kind of one answer guy he is clearly engaging in some banter with these police officers it's unquestionable given the language he uses in the laughter and my point is i believe this finding by the supreme court when read in toto is simply a finding that broadly speaking this was not a request for counsel it was not a request to mean such remain silent he was demonstrating in his way i understand right to answer the last question i'm sorry but it was an assertion that i didn't want to answer the last question and communication is very difficult and i think we're i understand that interpretation looking just at the words but i know this court knows we all know communication is much more and there's much more of it to end person interaction demeanor tone context and that's why i started at the beginning this is only moments after he said sure i've got no problem talking to you after he wave supreme court precedent was there a unambiguous unequivocal assertion of the right and more importantly was the california supreme court reasonable in looking at the entire record and and whether it was a problem with the california supreme court and never really analyze the question and identify and identify the the fact that he seemed to be saying you don't want to answer the last question and then he does they don't do anything with in your  think that's because like i say they were speculating about that in a literal sense but they don't have to speculate i mean that one is the last i mean they just asked him a question what's your side of the story what happened then and he says responsibly i don't know if i joking with the police officers and we can ignore that the officer immediately after that said look we just want to make sure you understand he said ok i appreciate it and then invited the police officers to tell him what they knew any gave him the conversation and because that one is just inherently needs to be given meaning by its surrounding context it's not a statement of i don't want to talk anymore i'm not going to talk so we need to have your position is that the california supreme court  had a reasonable basis for interpreting this interchange as the claim solely that he knew that he had the selective right to answer questions to be reasonable we need a reason how do you take this conversation and find a reason why how the court can find one in the conversation gives us a reason well i think just the interchange between the officers and mr michael so the officer had just said indicated to the defendant that if there was any questioning he didn't want to answer he could stop at any time and then it's said so is your position is when he said yes that one that was only an example of him accepting the police officers statement that he could stop at the time i think that's a fair characterization yes thank you yes and and that's a reasonable interpretation of the california supreme court yes your honor of miranda of the facts in this case yes and i would add to  that the trial court who listened to the recording of it made the factual finding that mr michaels was appearing to be in the trial court's words engaging in banter or fencing when we have th i don't believe i looked and i don't believe that was ever offered to the district court i don't think it's in the federal court record doesn't have to be the i think the petitioners opportunity to play step before the court if you wanted to i don't know that it has to be in addition to that finding the trial court because i heard my my colleague indicate that mr michaels was cut off during the questioning i disagree with that the there is no indication there's no evidence in the record either in the transcript or otherwise to indicate that he was cut off and the trial judge made a finding that mr michaels at that point appeared to these findings by the trial court we added those in our supplemental excerpts you get one fifty five to one fifty six and if there were a problem with this confession and you continue to maintain that there was no pre know i don't obviously it was there and it was an important piece of evidence our position is though that when you add all of the evidence from the guilt phase and the additional evidence aggravating  evidence at the penalty phase and we're talking about armed robberies in the past other instances of threatened violence with weapons over a period of years and really the brutal nature of the up close brutal nature of stabbing someone in their sleep you had a lot of evidence that mr michael's confession for the most part i'm not going to say every single detail but for the most part was simply cooperative or cumulative and i don't think that it had a substantial impact on what the jury did in light of all of the other evidence both of the circumstance of the pop up absolutely i would first i guess point out i disagree i mean this was not properly presented to the state court it was raised in the direct appeal as  and i saw the mention it wasn't put it this way it wasn't fairly presented as a federal issue to the state court and we stand by that and it has no they collectively all four of them collectively sequence for a scathing information to the judge and then given to the prosecutor i mean that's the essence of it is there's nothing more to be said about it so what would you have said if you what was the elaboration  well it would have been more along the lines of what you said they did not identify the each they didn't address the conduct of the different lawyers in fact my reading of the state court record they only assert i see with respect to the initial disclosure it wasn't right and our position is because it wouldn't have been successful it's and they cannot show prejudice and then now we get upset so therefore you're not really and in your view of the procedural default doesn't really matter well it it no it matters because it forecloses addressing this claim on the merits but at the same time i have to note that if if the court does get to the merits for the you know a similar reason that is lack of prejudice a lack of performance prong they're not entitled to relief what's the lack of performance from i mean whatever one might think of giving the note to the to the judge there is at is there any doubt that that letting it get to the prosecutor is something no lawyer judge made a ruling on it i think it's important to remember too but for the ruling as the only the only thing i've seen in the record so far maybe you can tell me there's more is that there were two discussions o why it's impossible to tell but there was some discussion about this is not you know exists only for you to see it's not to be used for anything and then it gets used and i don't know what that was all about i mean the rest of it i don't know i have traced it through to find out how it actually got it i don't i don't think the record is crystal clear on and all the goings on is with how the note got dispersed i agree with your characterization of what you just said there were a couple of  and you know one of the findings in this case by the supreme court the california supreme court was that this evidence should not have been allowed because of attorney client privilege well why would it be i c then if it's the  the attorneys could be confident that look this isn't going to be used against our client because it can't be because we have an evidentiary rule that says this will not be admitted against them so that has to factor in when you're considering their you know performance aspect a violation of chinese client privilege now it's in the hands of a third party it's no longer between the in charge and the client but what's the basis for not admitting it well i believe and i believe the finding was that it was a violation of evidence code for the trial judge  admitted at trial california had one fifty four think it is has a privilege for your privileged information cannot be admitted in evidence they found that was privileged information it was judicial error under the evidence code to allow that to come in topic this was offered in response to mr michaels assertion at the penalty phase that he was not violent and he was not a bully and it was limited to that use that's why it was only offered in re threat and then he says the prosecutor says he's my favorite witness so it certainly sounds like you got a fair amount of it was the last thing they heard it was fairly emphasized and went to an the rebuttal was because you know it wasn't going to be left lead in until mr michael's open the door and i think the point is that the prosecution thought it was important from the outset as they were trying to get it into again sure sure and when you look at this and i think it's important you know which one thing to focus on what happened with this instance but we have to look at all the other evidence that was admitted and this was never characterized as aggravating evidence we have significant other key aggravating evidence and we have significant circumstances of the offense in this case that can't be ignored when looking at the relative impact of this type of interest the counseling or anything else i'm sorry i didn't hear the first well let me ask you the same procedural question cerf asking before if we thought that this the issues about the pop up now were at least colorable fairly colorado and we want to know the answer to the martinez question how do we proceed so we decide the question i mean you kind of invite us to decide the issues i'm not super comfortable just signing issues understand and i suppose we think it's at least a serious question right then then the procedural issue needs to be dealt with head on my position would be this court can  martinez question yes on the basis of no prejudice yes that would be my my position however if this court feels that that there needs to be more development on that then i agree it should go to the district court but my initial position is based on this record right but we have before seen the record the information that would be relevant to your morning is a surefire blind well no and we'd be happy to breach that issue if the does this and i've advocated doing it but on the other hand these strange position because i'm uncomfortable writing a presidential decision that could have been patent on other case with regard to something that we don't know whether it's unusual enough issue that we're going to say some things that haven't necessarily been discussed before and it's really a presidential opinion yeah even if the case isn't properly before us well i appreciate those concerns and i think w concerns i wouldn't have any problem having the district court look at this in the first instance however my my first position still is here that it was properly denied we don't defendant in the sense that he wasn't afraid to drive the train with whatever we were talking about here and he was clearly driving the counsel train he articulated his positions to the courts the california supreme court this is the heart of the matter right was it was their decision reasonable they reasonably found that to the extent there's a breakdown in the relationship here this is the doing of mr michaels and the district court agreed with that the trial  court made that kind of finding to the trial court also made findings that mr grossberg was performing as a competent attorney in this case and those are entitled to deference there's information in the record that supports that cited by the district court here as far as i'm doing a lot well this is hindsight thirty years later at a case that we had a confession in and you know the question is do you just obviously you're not suggesting this but we don't just do things to do things that they the council are allowed to make reasonable informed judgments about how to use the resources they have and there's was no question that mr grossberg was doing this the problem was the conflict between chambers and mr michael on one side on mr gross and mr chambers said later in his abs affidavit as i remember as to what actually happened at trial that there were several things he would have done had he had time to do them right but he didn't have time to  upbringing and and so on and then there are several things i can remember now with him where that he said i would have done it except it was no time well i don't think we can say for sure what the real what the reason for any particular failing was or a decision to do one thing or the other that the trial court search set certain time limits the resource limits because this was an appointed case and that was mentioned in the record mr grossberg might i had a whole different approach of this case that when the required certain things that mr chambers wanted to do mean that the holder had on that would i think we are some things about a lot of different things regarding what people were deciding to do right from the as in their role as advocates scheduled truck a i believe that was it sixty eight i have it in here i know the actual time was about one hundred days that sticks out in my mind the schedule time was i want to see my best guess is sixty seventy eighty  so and a lot of the problem later was that the mother was allowed to portray this being a wonderful mother and there is some a cherilyn in the psychiatric report suggesting she wasn't such a wonderful mother but  nothing was actually done with her about her as i understand although this was pretty close to trial ready yes i mean i don't know what we can make of that if anything she was talked to by  and presumably accessible if you wanted him to be to his lawyers that any time i see my time's up your hon on this last issue about grossberg my recollection is that there's a trial set for february i think it's twentieth of nine hundred ninety and then i believe but i think everyone's going to assume that that's going to get continued because nothing has been done and i believe when he goes pro per when finally there's a denial of relieving grossberg it's either at the end of january the beginning of february so we're just a few weeks away from the trial at that but the other  wouldn't is it your position that the public is should have at least two attorneys as a matter of constitutional it is only required by federal statute and by the a b a guidelines i don't know  the trial court is hearing not only from mr michaels but from chambers that no one vested geisha has been done there's only been two witnesses that have been spoken to at that point the judge should be saying well is that true mr grossberg you know you need to be doing more than interviewing two witnesses in a death penalty case one trial is set for three weeks out what's going on who or why haven't you interviewed more witnesses are they lying about this in the trial court does nothing it's just