one of our and effectiveness claims without any strategic justification frank's attorneys fail to impeach we cling with his motive for an recant thing we can was given a significant benefit here to greed to switch his story to stop the state from sending the nasty parole letters which were preventing his release from prison incredibly the jury never heard about this instead we can claim that he was testifying because he had undergone a moral transformation and had regained his values failing to raise this manner of impeachment was a serious error that caused frank's significant prejudice deferential here it is doubly deferential i did not only if i got in the nevada supreme court coming out and saying keep your nose out i've looked at everything that needs to be said here and i've determined the attorney was fine but i also have give deference to the attorney itself to himself don't i because if this is in fact one of those one of those things where the attorney's own if you will abilities is i'm just trying to i mean my worry is that here we are we're trying to save the of the attorney is bad i found weakland significantly impeached anyway and all you're talking about is one more impeachment i'm trying to say is that really that big a deal and then i went to whether his testimony was in core operated and we can argue about that but you didn't start there i kind of think it was so i'm trying to think how would the outcome of changed if the jurors had learned why he changed his story one more time well there's two separate parts they like to address in your question of the first is about why this impeachment evidence was switching back to fosli kucing frank after previously recant ng none of the other impeachment evidence address that and the broader themes here was that we claimed falsely accuse frank when ever he was given a benefit and he in that intervening time he recanted he said all of what i said before is false what else with the jury want to know then why he was switching back they didn't know that instead based on counsel's failing to raise this issue we can says the jury oh i've regained my values i've gone through a moral transformation i'm testifying here because i know what's right and i and i need to go back to my original story but that was false so the jury could not reliably assess his testimony last they were told his motive well that's suggesting that we didn't have any of this other significant impeachment in the record i mean we have significant impeachment in the record but including that believe that guy but evidently they did and they did and that's why this extra now he why we are going to be more and more and more but explain to them why he would be a falsely accusing him this time it was different just calling him a liar was not enough it was about why he was coming back into court and changing his story what else would the jury want to know and going back to your honor's question before about corroboration that's moving away from deficient performance and into prejudice so if we're talking about whether or not there is corroboration for his testimony that has nothing to do with counsel's performance it has to do with whether or not it had an impact on the case and here i would like to transition into the corroboration argument not the primary started i would like to transition into the problems with the state's case here because this was a close evidentiary case we are in that state court there's this remarkable fact in state court that the secret litigation that went on for many many years is book ended by sense where the multiple that a supreme court judges discuss the problems with the evidence there has always been fundamental problems with the evidence here not just the incredible nature if we testimony we've pointed out how weak once a scripture of the murder is not consistent in almost every facet with physical evidence it is as if he has no idea how this how healed that was actually killed but beyond that the state's theory of the case never made any sense this bizarre love triangle with a double murder and a double inheritance it doesn't make any sense there were far more logical connections to draw here and we can be confident that error on the m council's part would have an impact here because of the closeness of  right into our actual innocence argument here because i just talked about that the weaknesses in the case and i previously mentioned the problems with weaklings testimony but first of all whenever you started these arguments i like you to think about what my standard or a view was because every one of these seems to me that one gets in there and one can make a good argument jury argument but when one thinks about what my standard view is their argument is not nearly so good so poor are really going to go to an actual innocence question what have you got to prove i think that's a very good question and i think if if we assume that this right exist so here we are or we're right here at the park at the castle and we don't think there is one but we don't know so we just assume it exists and then you have to prove what well i think this court in character set forth the standard or at least suggested the standard which is that we do have to ferment of lee prove innocence meaning that he is probably innocent that's correct and so we think that we have met that standard and one way that we think that lies at the core of this actual innocence argument is the fact that we close description of the manner of death is wrong in almost every single way but how does it show that your client is innocent so i mean it seems like you're you're showing that the government's theory was no good and their evidence was no good but innocence might be something more than that like maybe weakland is protecting someone else but that doesn't mean that your client didn't hire them to kill this person well we think that under the  indictment and what the jury was charged this was frank was charged with a contract killing so if we didn't kill him then he can't be guilty of a contract killing but like do even know that we couldn't didn't kill her although we know that he gave testimony that didn't really make sense about it but i don't know maybe he did that because there was someone else there that he's trying to not give details about or protect somehow the other person helped or who knows why he gave this weird testimony  mean it's hard to see how it's not like the evidence you have is that frank was actually in hawaii and never had the opportunity to talk to weakland or something like that i mean it's a package but the fact that not only does it make no sense  testimony about how the murder happened but also the state's theory as to why frank would even hire him i mean this love triangle where first they would kill him and rosalie who was still married at the time with mary marvin and then marvin would somehow die and then they would get the inheritance and that even martin would get the inherent it never made any sense it never made sense from the beginning right mary generally doesn't make sense that's our thoughts our main problem insufficiency argument and address them together well wasn't there some discussion about whether it was exhausted or nah we believe that it was exhausted through i know what you believe i'm asking you what the trial court did with it  exhausted so so the court never dealt with with issue number two on this particular issue well the district court just combined it with the ineffectiveness claim even though it was clearly played as an innocence argument not just an insufficiency argument what about the exhaustion is been exhausted well through the motions to dismiss and state court and then the from the denial of that motion it was exhausted it was raised as and as an innocence claim it was described as a miscarriage of justice claim it went into the same arguments that we've raised now it was tagged to due process discourse never ruled on this second issue and i just didn't know how we got by it well i mean billet he was granted on the actual innocence issue by this court i mean if if this court believes that the district court didn't address it and i guess it can be remanded for the district court to address it i think that regardless of exhaustion there are certain issues that we would want this court to consider if it's exhausted then would you know and this court can just jump right into the merits if but we also have this d n a evidence which is new and that's something that we acknowledge has not been presented before through the senate first before this court and there certainly are procedural issues with respect to that but when it comes to an actual innocence claim we think that the same reasons why this court assumes that this right exists at the same reasons why this court should consider any evidence that does point towards  to the physical d n a evidence does not disprove that weakland did not do what he did nor that your client hired him to do it and three the jury had all of your impeachment evidence in front of it before it convicted your client well there is other evidence beyond the d n a well i'm just trying to say i mean i had those three things after everything i got through when you've got to prove he's innocent i said to myself there's no affirmative evidence he's innocent the physical d n a evidence doesn't disprove that wyck weakland did not do what he did and it doesn't disprove that look the jerk client hired him to do it well i don't know does and there's nothing that you're arguing to me that you didn't argue to the jury they had all that impeachment evidence in front of them and they said too bad i don't believe it well so therefore i don't know how you're going to get to actually i don't know if actual innocence requires that the new evidence itself is the make or break evidence that points to affirmative innocence we think that all of the evidence when looked at together which would be the test shows that he's actually innocent it's not just one piece of evidence that points to affirmative that point affirmatively to innocence  we think that when you look at the fact that it's the weak ones testimony is inconsistent with the physical evidence that state's theory doesn't make any sense that   so if you think it was say we agree with you that it was exhausted i don't think you've really explained what the claim itself is or how it helps you or how you went on it so could you just elaborate on that a little bit my understanding is that one of the ways that the defense at least was thinking about attacking weak one's moral transformation was that they were going to ask you about some of the bad things that happened that he did when he was in prison to show that this moral transformation isn't true and going back and reading through the cross examination it looks like that the court cut that off and says you know talk about specific incidence of incidences you have made a good faith and it appears that he had presented that good faith basis he said i have this affidavit but the court said no you can't ask about it so i believe that's i believe that's the and how would it get over a harmlessness problem like judge smith was asking about about all the other impeachment that there already was well i think goes back to the weaknesses in the state's case in general so one part of the harmless error analysis is always going to look at the strength of the state's case and you know take my word for it you can look at all sense from the best from court talking about the problems with the state's evidence so the impact of that is going to be greater thanks thank you the other question no origin cut you off we'll listen to the state morning your honour's may please the court laurence vandyke on behalf of the nevada state respondents and unless the court would prefer a different way of addressing it i was just planned to go through the order that we addressed these particular issues in our brief your honor well i'm sure that none of us are bashful  appear and we're pretty prepared i can tell of my colleagues are both very well prepared so we'll interrupt you you can start out where you want to and we'll probably go out at you a little bit later on so starting with the insufficient evidence argument it seems to me there's a peanut makes two maner theories on insufficient evidence and its appeal one of those i would point out i think is a new theory that is made on appeal the other one is one that has literally been made in this case since before trial because there is a petition to the state court before trial about that particular issue so i was going to dress those to his his new theory his main argument is that we can i didn't do it and so he couldn't have hired me time to do it and we pointed out this change in our briefing we said hey this  otherwise your honor so that's important because it points out i think something that i think has come out in the discussion with my friend so you know side which is with the court's discussion with them which is it's just a really speculative claim of insufficient evidence or actual innocence i that in fact this is the court no doubt know it having read the briefs he lists no less than four other people that would be responsible for this crime other than him ironically one of those people this is mr weakland who he says could have done it so there's some inconsistency there there's a lot of out that the court may not be aware of about that i think even undermines his arguments and that is his first main argument of course is that we can we can didn't kill mrs kraus and the reason he didn't and i'm quoting from pace general is because when we can describe how he killed mrs crosses throat and then he stuck the knife in her back that's what we can said nobody contests that the piano understands that but and in fact the physical evidence was that mrs cross road had been slit and that the knife had been stuck on her back and so this isn't that's not how she was killed right well actually that's not true if i prefer recall correctly it says there's three different things that actually caused her demise and one of them was the throat things that but the other was was being strangled and the other was was being stabbed in the neck and so that's that's  if you have strangled someone and stab them in the neck and then and then after that you slit their throat don't you think you mention those things i mean there is some well actually i'll get that a second your honor but but but first of all i do want to point out that it's i don't think there was evidence that she was killed by strangling versus stabbing in the neck versus the i don't think the coroner was clear which one actually killed her so he just said there was three things that could have killed her plus the knife stuck in her but even some of the other pretty significant things to admit well it i guess cell although since i don't murder people i don't i don't know what happens to a person i know not that any of us really can know what goes through a person's mind mr le pina i mean sorry mr weakland did testify that he and other you know and there's a lot of testimony this case and he did testify that he was sick that he just wanted to get out of there they don't remember well and i'll point to a few of those things here in the record that aren't mentioned anywhere in in mr penis briefing but mr peters i just want to go back to mr penis big argument as your honor points out is that she would because she was strangled and stabbed that quote leads to one conclusion that we can did not kill hilda the problem with that was just on its face is that keep in mind this is not actually inconsistent testimony this is just weakness saying i did these two things everybody knows says you have those two things were done but there's these other two things that were done and he's saying well because he didn't mention those two things that that means he couldn't kill that's that's that's a very strong reading of the evidence or not even inconsistent and i'm not sure that even if there was this if if that was all there was to it pointed out to opposing counsel i mean mr weakland was all over the place and to be clear i'll get to that a second on the cooperation issue but the the jury was well aware of that that he was all over the place i don't think that you're i don't think any rational jury member would it would have thought i don't know which story to believe the jury was very well aware that he had he had said he had said mr and mrs maxwell hired me to do this and then later he came in and said they had nothing to do with it and he came back and said they hired me to do in the jury was that part of the jury was extremely aware of it all along with all the other impeachment stuff and so if you're a jury you have to side what are we going to believe and i think i'll get to that little bit but i think i think that the reason they they believe what they believe was because of the cooperate evidence i'll talk about to say i do want to point one thing out that's really important asked you if you strangled hilda krauss he answered i don't believe so so he's not saying i don't believe it's interesting i don't believe anybody ever asked me about that and he says that i you know tied her hands and feet i'm not sure if i tied around her neck or whatever i don't remember  and as your honor said i mean that may sound incredible thus i think we assume that if we murdered somebody we would remember every detail of the such a god but i don't know how that works all i know is that what what was in the testimony and was in the testimony is not that he consistently denied stabbing her neck strangler and through the stabbing of the neck with regard to the neck wounds when he was asked is it possible you could have punctured mrs kraus with the knife during the course of the killing talking about the neck wounds and we've done and i'll just stop you for a second so  getting this favorable treatment and that's why he changed the story again you say well he's already impeach so much that it doesn't matter but if you take out weaklings testimony do you have a case why i don't think that's the standard that you have to have a case i think  here agrees that we can it was a classic and credible witness you could have somebody like that but you could have enough cooperation for the jury to say you know what he literally as in this case has said two absolutely contradictory things they they told me that they hired me to do it they had nothing to do with it and the jury is well aware of that and say there's enough cooperation that we're going to believe we don't we have no idea what we believe with this totally incredible witness except for the fact there's enough cooperation that we're going but does the corroboration stand on its own or weakland because it seems like you want it both ways you want to say that looking so he's so impeached that it doesn't matter that they didn't impeach him or and yet you also want to say but yeah we can believe him for helping the gaps in the case i don't know i mean i guess i'm talking second about whether  assess credibility and when you have a highly incredible witness i i think i think maybe the right question would be could he be convicted on weaklings testimony alone and i'm not sure he could have in fact in about a supreme court threw it out one in the first case based on  that type of rationale but here's what here's an exact past the ineffective assistance argument you need us to believe that it didn't matter that he wasn't impeached more with this very arguably very probative thing about why he's changed the story again and or that there was no prejudice because he was already impeached so much so that just seems kind of intention and then with your reliance on him well i think it only seems intentionally my i think it's pretty clear what the jury what any reasonable jury would juror would be faced with here and that is i've got a guy that they've done an amazing job they've shown that he's a pathological liar that he's a psych psychotic killer they've they've shown that he has given this inconsistent test and he's literally said the opposite things i don't know what to believe by this person so what am i going to believe and i think they you can't believe you can't believe fish because he's a he's a criminal you know he's not he but again that's why we have juries is to assess that kind of credibility of course every jailhouse informant is a criminal so i mean or maybe not maybe all of them but they all you can always use that argument that there and so and indecision of that of course the i think the brief was pretty clear about all the cooperate testimony from weaklings wife or ex wife deal weakland and how she was she was literally returning the gloves that had been used in the crime to look after words are the gloves used in the crime i was quite confused about the role of the gloves if you i have never had a leadville gloves but apparently that what we claim testified was that we came in and he hit mrs cross's lying on the ground she's tied up and he hit her in the back t head with the leadville gloves knocked her out and these are like boxing gloves filled with lead that's what i don't know if there's something that can the brass knuckles or if that you know whether they're used in boxing i don't i can imagine if you said boxing you would think that would be very very nicely i think they're more like knuckles sort of something you would use like but i don't i don't know and i couldn't what you think i know your honor so the you know and then of course the other i want to point out is that the pain and maxwell member maxwell is the woman that was involved here the other part of the love triangle twenty four thirty in and what was asked about mass was asked by the investigators about what did you and cross talk about with regard to marriage and she testified twenty four thirty thirty one that we talked about the fact that if we could get is that if his wife wasn't there he would consider marrying me so the testimony is there the evidence is there that she had a motive obviously had a motive because he said he is fine with her to have a relationship with with kraus as long as the money kept coming in so there's a lot of cooperation evidence not in effect assistance the insufficient evidence claim i do want to point out though with regard to the standard on that claim one is i don't think they can meet it and so i think this court could could deny for i think i think judge smith said you know we i think i understood you to be saying that you know we keep on city denying these claims but denying them hypothetically saying if there was such a claim we and i think that's the kind of case this would be this case of course court could do the same thing and maybe it's not very satisfying but this court could do the same thing and say we don't know whether there's a herrera claim but if there type actual innocence claim but we are the majority said if there was this is what the majority in a suitcase said on three seventeen a herrera type claim this is the us supreme court majority could it would have to fail unless the federal court is itself convinced that these new facts unquestionably established in a sense that's a very high stand i suppose you could try to merge those who stand or somehow but that's extremely high standard so even if there was such a claim they could meet that standard they couldn't even meet or probably standard and so with the counsel asked week and said hey did you murder you murder lloyd paul that didn't you in jail right and i said is part part of the further impeachment and the court actually allowed and it was it that the court said that the trial court let him ask that question but then when when weakland said no i didn't murder mr mr paul that then what happened is he said i've got five affidavits from other inmates that will say that you murdered lloyd play and that's where the court kind of off and as your auditor undoubtedly aware whether you're in federal court or state court in the better state court of federal court the rules are the same as you cannot impeach with extensive cabinets so you can say is it true you beat up you know that you lied on your tax returns or whatever but you can't then bring in those tax returns and that's what he was trying to do here so don't know how long we took you but i'll give you a minute ok i appreciate your honor there's just two things i want to want to say first i want to address the corroborating evidence because i didn't direct it i didn't address it on the prior argument nothing none of the crab orating evidence you i note have to go through these it seemed to me that fish said little opinion poll the media diary yeah well fish had  she died due to the severance of the vertebral artery which is way back in her neck and the coroner was also clear that she dot that that artery was severed based on the stabbing and we  know that they were connected because the vertebrae around the severance were fractured so they were fractured when whoever committed the murder stab that vertebral artery and that's how we know that we can couldn't be the killer because weakling did not have blood on him the killer would have had to have blood on him because it was a severed artery and less think unless the killer or gloves and disposed of them this is a severed arm or you would have spurted blood and they you know may have would usually but may have but we have physical evidence jury and they don't believe any of it and so therefore i'm having a tough time you've given your best argument to them you want me to second guess them that's all you want not necessarily we are saying that that there is a level of rational conclusion that this court is allowed to look at and we just can't see how anybody can rationally conclude that w the killer when the physical evidence just doesn't support anything that he says all right you've heard your argument thank you very much gave you extra time the case with a without a good lawyer shield thank you very much