before i start talking about why it was wrong i'm going to be talking primarily about the deficient performance problem now judge wait began his analysis with the merits of the claim here his understanding was that there was no state court ruling performance and he thought that that since the merits went to prejudice and to the merits of the claim that he should get past procedural default he determined the statute was unconstitutional once he did that he said look this is an obvious federal constitutional claim that clearly was dispositive for mr may it also was amenable to vindication and federal court and he basically said ok this looks like deficient performance there let me look at all thompson and what strategic reason did he have for not raising the claim of course he's but my brace you know i take issue with this but he said well he didn't have a reason he was ignorant of the law and i can't divine any strategic reason for him not to do so because of when it's taken any time and  a conflict with any strategy now the problem with starting the analysis with the constitutionality of the statute is that it has some over sites number one when you do that you're forgetting that you're deciding this issue in two thousand and seventeen in the trial attorney made his admission in two thousand and seven and you're not looking at the landscape that was in existence at the time which was an arizona there are no cases construing the statute or whole thing you know constitutional in fact there's only one case that construed assessor version the sashing held the constitutional and of course we know that you're not supposed to be influenced by the distorting effects of hindsight but i think probably the most fatal problem with this particular analysis granted now that the supreme court didn't allow that this court is actually reversing this court on hey this review it didn't conflate the merits of the claim with the fishing performance that they asked a very important question one that i don't think judge wake adequately answered which is but another reasonable attorney and joel thompson's place have likewise decided not to raise this claim and the district court didn't do that analysis so what types of things would have p with tracey west her house and who represented mr mann appeal she she wrote and said you know there is a potential challenge to this to have shipped but i only give it a twenty five to thirty percent chance of success because arizona courts are very hostile towards burdon shipping claims and my theory is she wrote that if you take a look at this actually that they're going to analogize like a sexual motivation to justification and of course that implicates the martin versus ohio negate the elements just and if course we know that a element of course has to be proven by the statement from the defense doesn't have to be it could be put on the defense of the areas and the argument might not succeed but is it a reason why it would have been harmful to try we see the thing is that that's a very good question it what i cited were cases saying that you need to have more than just that conceivable chance like i cited angle versus isaac where the supreme court said you know the sixth amendment doesn't guarantee that the attorneys going to recognize and raise every claim and i cited cases like united states versus shalyn they from the tenth circuit that say that you have a duty to raise buyable issues and i even went further with precedent that said well what happens if you have a claim that would  succeeded in hindsight and you didn't raise it that actually makes me leap ahead your honor to the point that this wasn't a claim that was obvious and even if it were obvious i gave you many many cases in my brief where you might have an issue where there's a conflict within you mentioned prejudiced but then at the end of that opinion indicated there was no evidence or performance of either trial or hela cancel fell below prevailing objective standards and address deficiency as well now are is it subsume all of the claims and under rector that is enough for there to be at the deference but my duty to candor to the court requires me to tell you that you actually owe at the deference only with respect to the in effect of assistance a trial counsel substantive claim your decision in this got the vs martel says when it comes down to nova review you obviously have you know when you're looking at cause and prejudice you had the novo review but i'm not concerned about that because the rector and strickland in other cases like that say that even without that prevents you still have to give great deference to the trial attorneys decisions and so it was in that for that very reason that you see that i talk quite a bit about all the reasons that would have deterred counsel from wanting to raise the claim in other words in order to find thomson in effect if you'd have to say that no reasonable attorney in arizona would have raised this claim and what's very startling here is that judge wake failed to take into account and give proper w to the fact that there is no evidence that these claims are being adjudicated in arizona courts by trial counsel or appellate counsel during the p c r proceeding they didn't offer any motions by defense counsel prior to two thousand and seven raising this cla were there any briefs that were presented that could have done the same thing and so what we have here is we have michael pick a writer who i professionally respect and i cited the case for the proposition from this court that was later overruled by the supreme court on different grounds that the fifteen because it wasn't being raised did any of the court but arizona you know places the burden of intent upon the government this is the only stay in the united states which goes the other way that is true according to justice bales actually i take that back just this bill has made a statement of that nature as the judge wakey believes that hawaii might also do the same thing so the fact that i now change the right it's not this way anymore yes the legislature did change that and i do want to make a point about it because i know the obvious implication for the legislature to change the law is that it's some sort of a belated recognition that the statute was unconstitutional we have a federal rule of evidence that basically says that her subsequent remedial measures apart in this simple to prove fault i mean i believe  so it seems that there's an arc then arguments been made that the fact that there would be a transcript of the trial in a second trial shows that somehow it was reasonable to not risk the second trial can you explain to me what about the transcript in this trial would have been problematic for the defense for those things to me when i read it like it's maybe favorable for the defense it seems like there was there were several things that went kind of well for the defense in this trial so i'm a little confused by that well i think that what the whole point is this trial thompson didn't want to go along with the mistrial he was happy with this particular drury deciding the case because you know truthfully they were having a difficult time deciding it and i think he believed that there was going to be an acquittal but when it comes down to the mean let this happen all the testimony about the kids not remembering things then right another kid had already dropped out so if you take the mistrial why aren't you even more likely trial or else maybe there isn't even a next trial because the government gives up because this is not going well right the question that was but it would a reasonable attorney do not would you know hype the tickle different attorney would have done and the reason is that you know look i was a prosecutor drug enforcement if i have the defendant's testimony i'm going to be ok this is what he testified to i'm going to call additional witnesses to impeach that person i'm going to make sure i preempt their testimony with my victim's testimony all the weaknesses that i pointed out and you point me to any weakness i mean the way that he testified the defendant testified is there anything that you think like open the door for something way better in the second trial he did you know he did law i mean he was asked by the police officer you know about how many kids that he knew you know obviously that's something that could be brought up to the second of the second child i think we also the take a look at some other factors honor though i mean for instance one of the most devastating counts i think that would you please reconsider that ruling in light of the way that the prior trial went we also have jury instructions that were not exactly favorable to the state that the state might have said you know what judge that you told the jury that they can consider evidence of the other defendants to corroborate the testimony of the other and wolf oral for see this propensity evidence and the judge talk that basically deny the severance motion on the idea there would be crossing miscible propensity purposes but then hit the jury instructions that you can't do that so which focuses be more so perhaps and if i would just the not just if i was fortunate to just be a court of appeals judge but we could miss trials cleared and we destroyed and in this particular case what troubles me is what is the responsibility of a lawyer for professional lawyer on when you have a mistrial that's the clean jury new trial date was set and the jury was sent on  way you know i understand there's some issue of that whether they came back in five minutes or ten minutes we want to give it a try again but don't you think that we're dealing with the issue of exploring whether there was jewelry contamination as i read the law in many jurisdictions but not in arizona the declaration of a mistrial is the end of the case but apparently amazon it has a new wants the pro choice and the adopt the contamination issue chapel trial for a new trial because allegedly the joy of his reading of that the case in the newspaper every day that's an extensive aspect on the rules of evidence and i think the judge has the obligation to explore whether or not that was the case i have to do this many times when i was in brooklyn and for sure that if i declared a mistrial i would want to know whether the jury was contaminated here we have some evidence that they could be contamination that happened to incidentally creep into the record because there were these affidavits that were filed and one of the jury has said that he was on this cell phone now it could be two minutes it could be five minutes could be thirty seconds but of i was involved in the situation i would for sure want to know who they spoke on the cell phone who they spoke to what their loved ones may have said maybe they said you know go back and hang this guy have who knows but that issue was not explored don't you think that counsel at the professional obligation to the court to pull the jew it was and examine whether or not there was extensive contamination now that i don't believe so i'm not the reason is that your honor you don't even have it up against him you would have to have that obligation if there was any proof that actual exposure to contamination how do you know that unless you question that you want is on this circumstance you have only five minutes from the time the of because they're still like i am here with you judge the evens and judge block on talking to you about this particular new trial date the defendants here the prosecutors here the jury room could be very well just a closet where they go in and they can only come out through the court room and he would be in the best position to see whether or not anyone's coming out and going out the door but even using your concern about the five minutes you know so let's assume that they were all talking on the telephone how much could there possibly said they go back to their room facts exactly why i would question the jurors what do they read about into space to defect your judgment did you discuss this with anybody when you got on the phone to somebody tell you hang this guy how can you walk away with a convicted i don't know but it seems to me that's the very purpose of the obligation of the lawyer to let alone the judge to say we're going to pull the jews judge you have to find that on the appeal court said even assuming it was deficient there's no prejudice that doesn't seem to be adopting does it and talking about the issue about the mistrial yes you know what let me sit down and look at the order and then i'll be able to give you a better answer i have about two minutes and fifty one second the question is whether in five minutes there could be no difference with jurors speaking with other people i mean the juror did say every one of us was on our cell phone and certainly that could create some kind of question as to what was going on why they ruled that there was no structural fundamental error did not even address the contamination issue once a weapon or yeah exactly what they were relying on was a claim that that this had been barred by a state procedural rule and the state c r court discussed as to prejudice was whether there was the structural or analysis that the direct appeal had involved and i took it to be your argument you're starting to make anyway that strickland and the structur to review it so i'm not sure i'm completely understanding the course i should imagine as what did the state appellate p c r court do wrong in its analysis of prejudice how did it not apply strickland correctly so well it did not apply for a variety of reasons the first thing is the court did review the issues but didn't apply strickland for the understanding that he or counsel didn't investigate why it was that the jurors came back why it was that the jurors had an oral communication with the bailiff the jurors were doing a variety of things they were unsworn and when they came back to deliberate and at no point did the judge i'm sorry did defense counsel ever investigate any of that i was trying to get at a different issue do you think that the  state appellate p c r court applied the right legal standard of prejudice when it was looking at whether there was prejudice for this error did it apply strickland the legal test of strickland i believe that the court erred in we've rejected the claim of error so it wouldn't have been different so so why was that and a mistake an application of strickland that was pretty cute upon the fact that they found that this was not structurally deficient the issue of contamination was that who raised it all from what i understand during the direct appeal that's correct on there and where was it raised and you're going to get back to us because i didn't see anything about contamination raised in his briefing so i you know you'll have to just to be quickly i just want to clarify when you're talking about prejudice the question relates to untamed the question is whether or not a third different issue right so in other words he would have to make a claim that the him not asking the court to determine whether the jury had been contaminated by outside influences i didn't see that claim raised in the bee to the p c r court strategic decision to stick with a jury that seemed to have at least some people who want to acquit certainly honor as introduced or is addressed by mr picker at that you know as a defense attorney when you get a you run no matter what situation you have they've indicated that there were jurors who were hung but ultimately they came back and there was nothing to support the fact that those jurors that that there were going to ultimately convince all of the other jurors  to convict i mean to acquit i apologize certainly that there's a situation there there's no benefit at all to continuing with the trial significantly mr thompson was not receiving any additional funds for if the case got retried so that's important as you indicated before there was absolutely nothing in the record that would have been helpful to the prosecution or harmful to the fence there's simply nothing there and there's no reason when you say that defense counsel would take mistrial and run is the idea there that the state might give up and not even do the second trial or is it what's the rationale behind that you think is so obvious that any water would do it as someone who's had a lot of cases and has i can tell you based on our own experience but on just historically the case sometimes they don't want it and says especially where they see that they don't have actually have any recollection of it to come forward you have the issue of you know just sort of time this you know the court asked are there any objections to the jury resuming its deliberations this is clearly a stricklin issue because what counsel did in your honor i do not have any cases specifically on that one issue because it's such a unique thing you don't  usually have jurors who respond to coming back and saying they want to continue to have that is unique it still falls below professional norms in your view absolutely stand commonsense and not not just common sense your honor i mean you're saying he did not conduct any investigation he did not ask why the jurors were coming back what had changed their mind there was an oral communication between the the foreman of the jury and the bailiff even though throughout the entire proceeding everything had been  done by notes we have no idea what happened there and to allow that to happen without giving any kind of investigation at all seems obviously unreasonable and ineffective assistance of counsel there but if your honor if i may address some of the other issues that we have in the case i would hope actually the court would not even need to reach the mistrial issue because quite honestly the issues that were decided in judge weeks decision are absolutely you know should be affirmed by this court one of the most cherished rules i apologize your honor you look at you're about to ask you let me just be the ok fair enough but one of the most cherished rules in this nation is that people are presumed innocent and that the government bears the obligation  responsibility of proving every essential element beyond a reasonable doubt here the state of colorado the state of arizona creates a prison and that anyone is a child molester and that they have the burden of proving that they are not in this situation the only thing that makes touching a child's genitals though this is a wrong is having some kind of mental intent the government doesn't not seem to dispute that at this point there's no argument made that the statute should be to get to that issue we have to find cause and prejudice for not raising it on that regard to things before we get to cause and prejudice i just want to point out in our twenty eight day letter that we recently provided to the court either standard it was ineffective assistance of counsel what with the attorney here did was he did not challenge something that was fundamentally obvious to anybody there and avarice and sort of goes the other way there was completely different from the statute here in the statute in the lany i'm sorry in paterson all that was happening was you were decreasing from a murder two to manslaughter and it was a shifting of the burden on that one aspect here and several issues number one the holly two decision came about after the case and so in terms of determination of ineffective assistance of counsel you don't look at what happened now you look at what the status of the law was that the second thing is but i think was not really addressed by the majority what happened was it was a split decision and actually what happened was chief judge bells he found that this law was unconstitutional and what he found was that the court's decision was basically saying it was constitutional but if you look at the holy two decision all the courts really saying there is that you can it can be sexual intent can be established through an affirmative defense the court did not make a finding and it certainly did not make a finding under the federal due process clause so i don't believe in supplement to provide briefing to me on these issues here and so thompson didn't he didn't provide any briefing at all the state did but joe thompson didn't and had joel thompson actually investigated the issues he would have seen that there was case law from arizona that was related to this there was the jensen decision from one nine hundred eighty seven which said that instructional errors that put burdens on defendants violate due process all of the case law leading up to the simpson case which does decided after steve inmate's trial actually support the due process issue and the burden so the law that was in effect at the time that counsel should have been providing this briefing to the court that law would have supported the due process claim and he didn't file anything on it he just dropped the ball on that and i think that does support the ineffective assistance claim judge weeks decision is very well reasoned and he recognizes that counsel was ineffective and with all due deference to the state says well you know this was we have we may well have an unconstitutional statute stephen may has been sentenced to prison for seventy five years under a statute but it doesn't seem like anyone is disputing its constitutionality and how it was applied to him and that's a very dangerous thing if we're going to allow that to stand because there may be the question current is of the current arizona  is constitutional is there a case that says it's not i'm sorry is there a case that is there a case that's as the statute as it was written is not constitutional i believe that  makes a decision and the law that was in existence at the time of stephen may's trial the simpson case came afterwards all of the case law up until that point certainly supports that this was ineffective assistance of counsel your honor if there are no further questions i rely on our brief thank you i have sue minutes and forty eight seconds to cover a lot of ground i do want to talk a little bit about that with the jury continuing to deliberate issue to you threw me a picture that cockamamie buckle in my knees when you threw that curveball about isn't baseball good yes right i got the idea well i i want up looking at this i represented the state on direct appeal and the issue that i thought was most interesting we actually had oral argument on was when judge stevens declared a mis did the jurors go out and mingle and everything else and get contaminated and that's where we got the ruling under state versus crumley that we have the functional discharge issue that was the ruling that the court of appeals and the trial court was talking about with respect to dora contamination i won that issue on direct appeal because there was no evidence to prove that there was any sort of contamination that the jurors had gone outside to the public so that's a reason why the court of appeals and the memo decision said it was precluded but let me just do this judge i let's just assume for the sake of argument that there is the fish and performance that's what the court of appeals said here they said it's it's there's no prejudice because we've already rejected the jury contamination  first of all remember that this conversation took place after the court of appeals ever rendered is the sitter on direct appeal and so one juror who's saying we were on the telephones leaving but we have no idea what the substance of those conversations are and there's also the possibility that she it's a fair probability or possibility that the prejudice would have been established by the judge i mean he had the issue is that whether or not the jury would have you know convicted him or not convict that is what would the trial judge of done once he or she  or contamination of the jury it was raised to the p c r court i didn't to be honest with you i didn't think so i mean i'm trying to what i understood the that the state court proceeding to be about was the judge the sue a sponge day addressed this  issue and they came up in the federal hate b s and that's where i got the the king versus parasites case i actually cited two different cases in my people on this issue to be honest with you i'm not sure that this was ever squarely addressed because i'm not sure it was even raised i have about seven seconds i'd like to ask you a question about the prejudice analysis of the p c r appellate court ok on this mistrial issue so as i understand it what the state  about was the direct appeal question about structural error under which the standard is an error of such the mention that it cannot be said it is possible for defendant to have had a fair trial so i thought this your court said because we didn't find that the failure to object to the continuation of deliberations was wrapped up in that mistrial and in that issue was a proper for the for the court to allow the doors to resume deliberation after the mistrial that was i think was the probably  that contamination here and then even right but i mean i think that the court of appeals the rejection of the claim it's basically the application of strickland that the claim has already been rejected on its merits and you can that the issue but the thing is when we take a look let's say for instance you don't call you're making a factual assessment here that there was no contamination i think that's what really troubles me why do we have the right to do that i'll use a different context you didn't stand for the proposition that you don't speculate as to what the missing evidence i mean i see this in this as a simpler case that you know i think that should have been the query and i see that the failure of the lawyer to make that request is clearly but there's no prejudice because you have to speculate as to what it would have been you'd have to spec how do you even get to that if you don't know what the contamination hearing is going to produce well what if what if during the hearing a juror who submitted an affidavit we just happen to have that maybe in a different case i mean first of all for your assumption your assumption is that within five minutes the person say i would just let a child molester off or how can you possibly do that we don't even know that have noticed there's some case law that he read that said it could be two minutes it could be ten minutes you know there may be no contamination functional approach and there's no supreme court precedent that deals with the issue on the merits of the claim the only way i understood this claim ever being raised fresh pot was the judge sherry stephens have a sponsor a duty to do it she did and i would refer you to the cases i cite not  my brief but also my answer and again this claim would rely upon speculation as to what would have been said i mean let's assume for the sake of our even call an expert to show d n a well you didn't identify the expert you didn't say what they would have struck down and we can't speculate as to what the test would have