please the court money is paul turner i'm with the federal public defender office in las vegas nevada here this morning to represent steve cox i'd like to reserve about three minutes for rebuttal your honor and i'll try to watch the clock as you certainly do so we allowed twenty minutes in this case so we're not entirely sure of each side needs the full twenty minutes but we got it accordingly and i understand your honor obviously my main reason being here this morning is to respond to the concerns of the court about this case having said that i would prefer to start my presentation today with the issue dealing with sentencing the grounds fyvie of the of the amended petition argument that mr cox was  zar thinking i think would be a good way to put it all i guess from a technical point of view you might not say that he had i digressed say mr cox thought he had discovered a way of saving society from cocaine which if true would have been a wonderful discovery unfortunately as far as at least i know this morning nothing that mr cox to come up with has ever helped anybody over or proved to be true he believed it was true i think the record clear about that he thought he had developed something called an arc light so that he could somehow and tell the dangerous properties of cocaine and separate them from other properties and that in his mind were dangerous are but your concern has to be here to establish ineffective assistance of counsel was a total their election of the duty to investigate correction and the failure to offer mitigating mitigating circumstances or mitigating evidence now  isn't the record for all of this you know that there was investigation by this council and indeed mitigating factors were brought to bear but mr cox kept refusing them your honor you're absolutely right the record is full of a lot of information unfortunately it's missing the one piece of information that really counted at sentencing namely that mr cox could be treated that he could be rehabilitated that that his potential that future dangerous cox could be minimized could be removed that was the critical item at sentencing distinguishing life without and life without and i thought we had a hearing four years ago in this case and i i said that back at that time and i'll say again life without is  life without hope you've drained hope out of somebody when you give them a life without sentence it's very very different from other sentences mr cox obviously hadn't had an alternative possible sentence of life with the possibility of parole a chance to convince a parole board that he had been rehabilitated and that with proper medication he could live a normal life in society he had he lost that opportunity lawyer didn't present any evidence any evidence of his rehabilitative potential and we've we've come forward with mr with dr st martin's report in this case which clearly indicates that mr cox could have been treated that this problem could have been reduced and that he could his dangerousness could have been largely sentencing with the best piece of information a lawyer could have at that point a recommendation from the state of nevada for a life with the possibility of parole sentence lot of lawyers would dream of having that in cases like this but he came out with a life without sentence he came out with it because he didn't do his job he failed miserably to represent his client in this case was a recommendation of life with before the sentencing judge yes it was with the possibility of parole the court knew obviously you are just totally correct the court was very familiar with mr cox and the judge was obviously concerned about dangerousness and i have so many again that if it if the the correct evidence that dr st martin would have been able to present or any equipment expert the judge on our judgment would a very likely gone the other way with a life with sentence the judge well knew that steve cox was quite different from the typical delusions that but again the critical thing here is that you can be treated for delusions you can be you can be healed of that problem and the judge was never told that you certainly should have been told that that much would welcome questions from the court because i want to be sure that we've made our point as clear as we can you know no questions i know the judge you're going on inquiry is very pertinent you know and i know how important prejudiced is in proving this claim and i know that that's been an issue in a number of your cases and i would submit to you that this is clearly a case of prejudice with this distinction between like with and without with that one one critical fact not in the record i'll move to the to the other issue your are vehicle with a windshield the right side of the windshield smashed out and this is quite interesting eleven dogs within a loving pit bulls two adults and nine puppies hardly facts that normally go with  with a murder case but quite interesting and quite important i think once again reflecting that mr cox is quite different from the normal defendant after the matter in the incident in las vegas he was out on the road heading toward met this tennessee to try to reconnect with family there and not change his life from what he thought he was he thought he was escaping from people who were trying to harm him when he was stopped by the by the excuse me arizona highway patrol they gave him his miranda warnings and he made a damaging statement at that point that suggested that he indeed had had contact with the victim of this crime i would submit to you and we've certainly asserted that mr cox was not in a mental condition at that point to give  voluntary statement that he was also not capable of waiving his miranda rights and and that that those statements should never have been admitted against in a few days later he is now in the holcomb arizona jail and returned to las vegas to face this matter and he's two officers from the north las vegas police department come down to meet arizona and this here the facts account the most in my judgment they walk in to see this man the first even start this trip also they indicate to him according to their testimony that and this is very odd to me they indicate to him we're not going to ask any questions that's very interesting they've just given him to miranda warnings and now they're telling him are not going to ask right he had at that one at that one point your honor ok whether that what that indicates obviously i don't think it means that mr cox is mentally healthy at that point but for whatever reason he did exercise that right they're not going to ask you questions i think that the subtle message there is we want some information from you and we hope you'll talk to us i think that they knew it was going to talk to them i digress and also say that in dr st martin's report the court will see that one of the one of the he did you honor and admitted that he killed her he did he tell you testified for actually i should i don't know if i'd say he admitted he killed her but he came in he described circumstances under which her life was taken he did he did he testified actually this is the interesting for about two hours without stopping literally the only thing that stopped him was the prosecutor who finally i guess just got worn out by the whole thing and suggested maybe somebody should ask him a question he literally  properly we lost it on a procedural basis like that that's our position as it connects back to this whole sorry argument basically is that mr cox was could not have voluntarily given any of these statements they're all a product of mental disease and he was in a coercive environment from the time the arizona troopers were originally stopped in through the jail through through ten or eleven hours in a police car over a period of about two months and that that that those statements should should the in the context of saying that there should be a hearing so in that case at least the court felt that there was clearly established federal law i mean it relied on jackson to do that i can't say that i don't know of any supreme that you look to the general principles of law and they can be applied to two different factual patterns you don't need to have a blue car in each case or the same red car you can have some different kinds of things that as long as that general principle of law court in that case i believe the person was waiving the right to counsel that's obviously critical right that this is this is a critical right to waiving raising your right not to speak your fifth amendment right not to speak is very critical and we think johnston  is clearly established federal law that does control this this case and we think this court's opinion in the  absolutely correct and that this hearing should have been ordered the judge knew this man had a problem he did it partially but he didn't do it all he should have he should have ordered the hearing also i think we understand your position perhaps we should hear from the ground here if you still have some in refusing the stipulation to have him do the sentencing and instead insisting on having the jury do the sentence and in this particular case when the case came back the  judge the defense attorney made an argument the defense attorney not called many witnesses but the defense attorney did make an argument for and frankly there's no case i'm aware of that requires defense counsel to call any witnesses a sentencing in fact my experience in the is while it does sometimes happen it's a fairly rare occurrence the probation office recommended life with the possibility of parole that's correct and although under nevada law of the trial judge has complete discretion is not bound in any would i want to know what this one did i mean i don't believe that it really did was the last time you read it it's been a while so your memory though if there were reasons were not given the present reports typically go to both sets of counsel several weeks prior to the sensing hearing so they have time to repair put a fence attorney has an opportunity to take it was client and and make factual corrections if there are any made and things of that nature you know if that was done in this officer typically it was my experience in nevada is that the i think they're allowed to but i don't think it really usually happens usually the if there's going to just be with respect to sentencing it happens at the hearing but there is nothing that i'm aware of in the law that probation officer who authored the p s r and if there was no detail for behind the recommendation for parole to find out the kinds of things that motivated the probation officer to recommend that there was the thing that would render the defense counsel from doing that although my experience is most defense chemical don't do that thing in this particular case that the defense counsel did contact the prison it's pretty obvious that he makes the argument that he thought he talked with mr cox's caseworker and it was part of his overall argument that mr cox was doing very well in prison that he was one of three people according to the caseworker who was all for polite and respectful to the president forty so he wasn't he didn't he didn't investigate him part of something obviously by talking to the caseworker to get the caseworkers assessment of how mr cox was doing in prison to make the argument that  argument was mr cox had been offered murder in the second degree by the clark county district attorney he turned that down and went to trial and found guilty of first degree murder second the murder nevada you have there is no such thing as life without the possibility of parole so h basically the state at one point point time at least willing to say that at some point in the future mr cox to be eligible for parole and he was doing well in prison and so judge don't penalize him for exercising his right to go to trial and sensible life without the dangerous or just crazy depression the i think the repression of the sentencing judge was he was crazy dangerous and i think that really was part of the judge just when the judge made his sentence what is changed but at that point in time a sense of life without the possibility of parole could be commuted by the board of pardons and then once he was commuted then he would be eligible for parole the pardon procedure nevada sort of unique in that the board of pardons is made up of the justices of the nevada supreme court the attorney general and the governor and majority of the board of pardons has to vote to commute the sentence and the governor has to be in the majority an extremely dangerous individual though i think those will judge that was just the judge's comments and i don't think there's any respect in an ineffective counsel if you go to the prejudiced component of it i don't think there's pretty much any evidence bill to go to the board of pardon some point in the future and have a sense of life without community life with but if he'd been sent between the murder a decade later and sense to life without he would be doing life without so that so with respect the sentencing issue i don't think there's i think there's no real prejudice because i think the judge was aware of everything in this case and was going to and concluded that given mr cox's mental illness and the issue and history in his pretty and the judge's perception if you train us that the sentence going to be life without the possibility of parole i also don't think that given the fact that the records indicate that reason to put on evidence because what about the other issue the sue a sponsor competencies valuation on the brand a case with respect to that issue i don't think there's any clearly established federal law that requires that and that's and that  and that's basically sort of the end result mr trying to talk a lot about all the facts leading up to it but i don't believe that there is the united states supreme court has ever said there's any kind of specifically with a much more fundamental right of of having actually having an attorney and johnston sort of reserved obviously was one of the long long lines of cases that ultimately to the cases that said that every crime of the thing that has a right to have an attorney regardless of their ability to pay but with respect to this i would respectfully suggest that as a general rule intervene and in this case because the issue is not ineffective assistance of counsel we're dealt we i think we have to assume that counsel was acting in a reasonable manner in not doing so in not requesting any kind of hearing and certainly not reasonable one reason counsel certainly may not have been objecting is because he knew that his client was going to be testifying mr turner speculates well he might not have testified that the statements had not come in an opposite inference loss would be that he knew his client was insisting on testifying and he made a decision that he had we had we had a situation where he had a client was going to give an absolutely bizarre story as to what had happened and this absolutely bizarre story jury's going to be live reasonably asking itself so when did this guy have a chance to make up a story of this strange and by having the people testify that this was his story from day one that that mr cox was acting in a bizarre manner and giving the same strange story over and over and over certainly would  uittal i think you would have been very very happy if you somehow got mr cox convicted of voluntary manslaughter or some lesser charge but he still but certainly when that's going to be  defense self defense or sort of one of those hard to think of that while no defendant is ever required to testify it's a very very hard things to put on if the if the defendant doesn't so i think the inference can certainly be based on the that was used in this case that these statements given to various law enforcement officers were sort of where we're going to bootstrap into the statements that he made or maybe show that when we said i would ask the court to affirm the district court with regard thank you counsel mr turner you have some reserve to thank your honor first of all i would like to know is that the p s r when i'm familiar with the first one is that excerpts of record page six seventy four  and there is no explanation in my judgment at least of why they went with life with it's a good question and i have my background is not a criminal lawyer in nevada but i have appeared i have sat with a parole officer doing the interview for a p s r and i have actively talked with that person so as mr tonight are going to kate it obviously is no reason that couldn't have been done in fact that probably would every lawyer should do that that that should be fundamental  first probably with an update of anything that occurred since then but i've never seen it so i can't speak  testimony about that subject of dangerousness that's the freshest fundamental lawyering that's nothing exotic and that's our bottom line on this that that's that's got to be ineffective for not putting on an expert to tell the judge that this man can be healed and if you look at you look at the opinion i'm sorry the report of dr st martin he flat out indicates that this man could be rehabilitated that a delusional disorder of this con can be addressed by medication and that that would be a fundamentally