two separate holdings first in its finding that defense counsel's failure to object to the polygraph refusal did not constitute deficient performance and second in its finding that the resulting erroneous admission of mr man refusal to submit to a polygraph and examination did not prejudiced his trial so to focus on that second one please certainly with regard to the question of press prejudice the state and the defense had two different competing theories agent and probably principle and the murder of mr ruiz the defense theory was that mr mintz evil at best was merely present at the crime and at worst has some kind of minor excess yury role in the crime when witness first yes and when the jury came back with its partial verdict on the fifth day their verdict was actually consistent with the defense theory they had acquitted him of first degree murder found him guilty of accessory deadlocked on the second degree murder and kidnap charges had they acquitted of everything else and convicted him only of the accessory i think that would have been entirely consistent with mr nancy both defense the acquittal of first degree murder clearly rejects the only theory the state was advancing there's three key witnesses said we erroneous lee applied the principles of strickland to the case first the california court of appeals completely failed to follow strickland's command that you must determine prejudice after considering the totality of the evidence that was before the jury including the way the error would have affected the inferences to be drawn from the evidence and the strength of the evidence in the entire route well i think you have to consider first the quality of the state's evidence there's three key witnesses all of whom are members of a violent gang get immunity time served and immunity respectfully from prosecution you knew that oh i agree the jury knew that but they were looking at three states witnesses with obviously a very good reason to lie versus a state of fence theory that is advanced really only through this police interview because it's important remember mr manzi bell never takes the stand so the only thing the jury hears from him is through the tape recording of state's exhibit one thirty six that interview is played for them as basically the final thing in the state's rebuttal closing after which the prosecutor referred to him as lying a liar or having lied dozens of times in the last three paragraphs of transcript closing argument it referred to the polygraph now he does not explicitly refer to the polygraph but i think clearly implicitly since he doesn't take the stand liar can only be a reference to his interrogation that tape was played three times eventuality to the jury and the transcript went back with them during their deliberations there's nothing else it could have referred to particularly when the jury instructions given talk to them about consciousness of guilt couldn't the liar charge because they have theory of the evidence at all it's clear that the state's theory is a first degree murder theory it's clear that the defense theory is somewhere between accessory and mere presence depending on how you draw the inference what that group reckons the jury is going to compromise verdict all the time we don't know why the jury found what it found but how does that establish first the prejudice from from their finding out about the refusal to take the polygraph examination is i think explosive there is a reason why the fornia legislature in three fifty one point one categorically excludes this evidence this isn't a discretionary test there's no balancing as soon as a jury hears in the middle of this interview tape that he refused to submit to a polygraph examination the police referred to clearly in the tape lie detector so the jury knows what we're talking about that's absolutely explosive mr mims evil doesn't take the stand when the state refers to him as a liar it has to be a reference to what they heard from him on that interview tape and i  by failing to consider the totality of the evidence things like the length of its ever deliberations quality of the state's case were not even considered as part of the reasoning of the california court of appeals opinion on prejudice second the california court of appeals made factual findings that were unsupported either by the record or by logic the court holds that no reasonable juror would infer consciousness of guilt and that the erroneous admission wasn't exploited by the state well it may not have been intentionally or explicitly exploited by the state in was clearly exploited in that rebuttal closing argument before they went to the jury i don't think there's any way to understand why are other than in reference to the interview tape when mr mintz evo doesn't take the meanest they have pointed out there is an alternative way of interpretin what in the interview is different than the version that was given by the witnesses the trial but i actually think that's part of what the prejudice you mention of his reference to the polygraph is because not only is there a chance that in first consciousness of guilt but if you look at the actual transcript of state's exhibit one thirty six and the act record after the police implied they say we have an in house polygraph person the implication being they give this polygraph to everyone they interview i think the clear inference being that the state's witnesses  right you know there could be a reaction  nothing indicated that he wasn't taking it because he felt guilty but i think that's the clear inference and with all due respect you're talking about what is clearly the self serving statement of a defendant being interrogated by the police i don't take lie detectors because i don't think they're reliable the jury doesn't have to believe that's his reason they can infer consciousness of guilt also she was clear understanding that doesn't reflect that there was an inference of consciousness of guilt that's the problem with your prejudice argument well we never know what what makes up a jury deliberation because they're secret but we know that california evidence code makes this categorically excludable and that the california supreme court has make clear that the reason it's categorically excludable is because in the words of the home court the quote extreme prejudice of  jury ever hearing the words lie detector test and one of the problems with his explanation is it implies among other things a lot of experience with the criminal justice system the police watching a lot of t v but well that's true but the police say lie detector the police a lie detector and his response is the polygraph examination is not reliable i think there's just an extreme danger the jury understood that i mean this is a person who's taken a poly before and had it come back to bite him he understands that he doesn't want to take the  and if you look at it in context the implication is that the state's other witnesses didn't take the polygraph and passed and in a thirteen day deliberation with a compromised verdict i think the california court of appeals was unreasonable in finding that there was no could not have been he was a wonderful player coach afterwards he coached high school football and he was just a monday morning quarterback to the end big football fan n f l fan and you can never get in the head of a quarterback and that's what we're doing here in this case is trying to figure out what it is the attorney did from the blank record really in the record in this case clearly shows that it was it was a fact finding process really is what it was and certainly we know now afterwards after the evidence you're hearing that recognizes he should have made an objection and he didn't we know that after the fact but we look at what the with the fifth district court of appeal did and wondering whether or not they applied strickland to the record then before it and my position is is that they did re few seconds there were some there was some statements after that there would have been a gap in the record albeit very brief that's true there was some reason just lop off everything before the polygraph entry and the jury would never know we know that now but the fifth dca with the law they had at the time applied strickland didn't and it couldn't divine that from the record and that's the position that we're taking is that they don't they based upon what they saw on the record they had assumed that there was a tactical reason for it this really is a case where you can get into the heads of the jurors and that really doesn't happen very often and i say that because their declarations in the new trial motion no reference mean made anywhere as to polygraph being considered whatsoever to the the prosecution so this is one of the very rare instances where we can actually get into the head of a juror and you terminate it just went by them also like you did everyone else in this case secondly at least three people saw mr man with the gun  brother to me i don't want to be your girlfriend that same evening she had sex with the victim mr mansell was outside listening to the door at that party as well as mr perez in the case so the motive there is a rival gang member membership and it's also kill for a woman and i think that's telling because mr massey will never says i didn't kill even when miss process hey you know where is mr riehl so that you guys killed him certainly there was more than one person involved in this murder the issues a it was a compromise and that they convicted mr second degree murder and i think the court honed in on that fact they had it was he was this is a capital case to start off as a capital case and  frankly even if the court were to say hey counsel was unreasonable and failing to object that just really wasn't any prejudice and we would ask the court to affirm the judgment of the lower court about the polygraph what the declarations do reflect is that on the fifth day when they deadlocked they were voting six six on the murder two counts and i think one of the things that the california court of appeals was erroneous in applying strickland with regard to prejudice is not even taking factors polygraph issue at all they were not something that were taken later on as part of the ineffective assistance of counsel investigation and so since trial counsel admitted at the engineering that he never noticed the polygraph refusal they just weren't part of that investigation into motion for and that was something that permanent in the mind of the jurors that have come out regardless of whether it was the focus of the investigators but i think the dangerous thing about something like the refusal to take a polygraph is it's not something that comes across consciously it's something that affects their perception of the trial in a very subtle and implicit way there is a reason why the california legislature absolutely does not permit this evidence it has the air of science and in subtle ways it suggests that the police can scientifically determine who's truthful and who isn't truthful and in a trial where they tried to people and gave walks to the other three is their star witness is that subtle suggestion that they knew who was telling the truth and who was not in a trial where the jury