good morning your honor may it please the court elizabeth richardson royer on behalf of the petitioner i plan to reserve two minutes but i'll watch the clock at mathew man's honest capital trial the prosecutor falsely told the jury just before deliberation that the victim's blood was found on mens on his pants the parties agreed that this was flatly false and that in fact no physical evidence tied mr mens sana to what happened inside the house now because the district court below properly found the trial counsel's failure to adequately challenge this false statement was deficient performance i plan to focus this morning on the question of prejudice to explain why the false statement about the victim's blood very likely changed the outcome of trial and why the state court decision to the contrary was unreasonable there are at least three reasons why the state courts pressures determination was unreasonable the first and i think most important is that the state court improperly credited as credible the inconsistent and biased testimony of the informant so what was the state court supposed was a court of appeals supposed to do with the with  was to do with this they were supposed to look at his testimony and consider whether had it not been corroborated by this very damning physical evidence the jury might have looked at the internal inconsistency is within it mr man's on a went to the hospital a bullet was recovered from his back that had been fired by a weapon that was also used in this crime but that doesn't tell us that just on the same night certainly it suggests that he was involved right but it doesn't show that he fired a weapon that he was inside the house as opposed to a dispute happening outside and in fact there's evidence suggesting that only one person went in the house and that person very well could have been estrada the eyewitnesses when they first talked to police describe one person in the house the neighbor across the street who witnessed somebody coming out of the house said one person came out of the house described that person initially as five foot six to five foot eight wearing white shoes that matches erik estrada matthew men zano a six foot three he was wearing black shoes on the night of the crime so so the jury could have been confused about you know if mens sana was there or if he drove erik estrada to the crime scene if he they had a dispute there was evidence they were arguing but the jury didn't know unless it saw the there was blood from the victim on his pants that he was in the house but that was also of ok so you agree that he was there i don't agree that he was there but i statement about how he was shot was backed up certainly and so that's not to say that the jury couldn't there wasn't sufficient evidence for the jury to convict him but the jury very well could have had a reasonable doubt about whether it was him or erica strada or somebody else who went into the house and killed these victims except you know the prosecutor when he told the jury that the victim's blood was found on mr man's  was excluded correct she was clear in her testimony and so to the extent that the jury even the prosecutor at the beginning of the argument the beginning of the case was giving his opening statement you know the d n a is not going to show anything and if he had maintained that position we wouldn't have a problem here but what he wanted when he did his closing argument he also said at the beginning that he downplayed the career he didn't downplay it when he came back and what he actually did was if you look at the way the order of his argument he went through the evidence piece by piece and for the first five pieces of evidence including the bullet recovered including the regular lot of testimony he said this is enough for you to convict and the moment he gets to the d n a evidence this fake evidence of the victim's blood on mr hands on his pants all of a sudden we have enough all of a sudden you should convict so there was an objection of them point there was an objection would you make of the judge's response i think the judge's response actually made it substantially worse because the judge said so the prosecutor said the victim's d n a was found on his pants objection your honor that wasn't the evidence and the judge said on his pants or on his shoes which strongly suggested to what i make of that is that the jury event thought well we might have to consider where the d n a was a mr months on a but maybe we don't care and this court has been your judge the first question was is there any involved but other than mr rugg a lot of testimony which differed in key respects from other evidence there's three little one internal consistency to others that would usually our jury could easily decide explained by the fact that the four years before there are multiple inconsistency is internally and extremely internally first he said that mr cruelly was shot in the garage later he said he was shot inside the house that's a critical fact first he said that mr mintz on mr estrada were talking on the phone on the whole way over then later he said i don't know whether they were talking or not he he differed on where mr manzano was in the jail when he told mr begg a lot of the story so those are the internal inconsistency but i think the extra ones are really more important he said they ran in separate directions but the credible eyewitness said that they got into the same vehicle he said that the weapon was a forty five it wasn't he said that deseret guy a ghost came running out of the kitchen at which point mr burns on a supposedly ran out of the house but she was in the living room the whole time so these are key and consistencies in the jury certainly could have said look at this this guy testimony is the only evidence that mr mcdonald went in that house and shot these victims and we don't believe in and except for the fact that there was this false corroborating evidence it's reasonably likely that the jury would have had at least a reasonable doubt w yeah the district court i think properly found that any member of this gang would have had a motive that really the person who had the biggest beef with mr hogan was the person multiple people had a motive so that alone doesn't prove that mr man's on it just saying that this is a jury issue so i mean there were certainly sufficient evidence which the jury could have found him well i think it's much more than two words your honor and i think you know the question is whether there's a reasonable likelihood that given the other inconsistency the trial a jury would have had a doubt about who it was that went and killed these people and this is key evidence if the jury believes because the prosecutor falsely told them that the victim's blood was on mr mintz on his pants then yes he was in the house he fired the gun but you have to find i mean it's really hard to find any effective assistance of counsel and he did make one objection the first time well he had no reason not to object again i mean especially after what the trial judge said though i think i'll reserve my ten seconds for one second before we sit down give you time to read for some rebuttal i just have one last question for you the decisions of counsel you know in the course things are happening quickly their argument was coming down you know is happening to evolving it's dynamic we were told to give deference just right there to counsel's actions correct right good then we come that there was the fishing performance and not objecting or not advocating for a more stronger admonition to the jury so even if you get to prejudice the question we have to ask and answer is w trial the state court of appeals decision on prejudice unreasonable under in light of everything we've been speaking about yes your honor well i think the double deference that you're talking about say that but i i do think the state courts decision was unreasonable in this case and it's this case is very similar to a case in which this court found under that the state courts determination on prejudice was unreasonable and facts very counsel objected but furthermore the misconduct in the pot was prejudicial and resulted in reversal as the court of appeal noted in this case even under state law while the prosecutor did make a misstatement all parties agree it did not rise to the level of reversible error and so failing to object and preserve the issue of process for misconduct was not prejudicial because that issue was not mer yes i mean the prosecutor knew that the prosecutor it appears based upon erroneous transcripts was under the mistaken impression that there was no no but he knew that before he knew that before the trial even started because he said that the when he gave his opening statement he said  you know we didn't we did this testing it doesn't show anything and you know blah blah blah yes he was pretty clear and when the when this is when the experts got up there and testified they were they were there was no doubt in their testimony ruled out everybody else but mon serious mistake you know but he knows d n a or scientific evidence can be critical well i think it's explainable in light of his apparent view that even his misstatement was not very dispositive as he went on to say after he was overruled he said there was some d n a i believe it was on the pants it's not very it's statistically it's a very low probability match he said one in ten latinos or one  eleven caucasians and then he said it's certainly not enough to convict it's not dispositive and so even in his own view this evidence was very slight so perhaps he thought that he had overlooked what you'd gone through or he had gone through a series of factor towards guilt and it's kind of pushed it over right isn't that what he said i don't believe he said that this would be enough to push it over he said that this was one more factor and perhaps perhaps  argue the prosecutor didn't argue that this showed that mr mims on it was in the house which showed that mr mims on it was in the house was the witness's testimony as she said one person was in the house and one person was in the garage and one of the witnesses said that the person inside the house was struck by friendly fire and was dragging their foot as they walked out obviously there was only one person who showed up to a hospital with a bullet in their pelvis that matched one of the gunshot  one sure that was not the prosecutor's argument the prosecutor merely said i was responding to defense counsel's argument incorrectly defense counsel argued that there was absolutely zero d n a evidence in this case and he said well there is one very statistically low probability match didn't argue that it meant one thing in particular just that it existed as we i now know that was incorrect when the judge said pants were shoes he said i believe it was on the and i think that the objection and the trial court's admonition certainly notified the jury as to a dispute in the evidence and the court told them that they were the ones to decide the evidence and the facts in this case and so counsel claim yesterday and they said well there's no that we don't see any depiction performance here because there were several strategic reasons that could never defy what the prosecutor did  prong certainly counsel as the state court noted counsel may have decided not to highlight the issue making it seem as though their entire defense hands on the fact that there was no deal he had nothing to lose i mean the magistrate your point is that he absolutely nothing to a stressing that there's no evidence because the witnesses testified that's not true your honor he did have something to lose and that he had to lose his credibility going into a possible penalty phase he had no way as we argued in our briefs he had no way of proving he had just been over jury what the facts were that just was not going to happen but looking at the transcripts doesn't dictate anything is what the witnesses testified to yesterday but at most he would have there could have been a read back and as we noted that was it was poorly punctuated and incorrect or unclear sufficiently sufficiently unclear that on appeal mr manzano contacted the expert and had them draft a declaration in order to clarify what the transcripts were so i don't the being the trigger guy yes there was your honor there was no physical evidence that shows he was the trigger guy that was the bullet recovered from him that was fired by a nine millimeter the nine millimeter bullets were fired from that was the fact that he had the bullet in pelvis show that demonstrate that he was that shooter that he pulled the trigger because the well that he was a trigger man yes because the evidence was that the trigger man who came into the house was the one who got shot there's no way to get over this fact that the witness inside the house said the gunman in the house who fired the bullets that killed mr hogan was shot and there was only one person who was shot and that was mr m on the start of questions did she testify there was only one person in the house yes she said one came one gunman came into the house and fired from the foot of the sofa and had to get shot by mr estrada it was a straw in the garage they came in through the garage where the grandfather mr girl was working i gather some place in the record was there a layout of the house the inside of the house i believe there was ron going to exact that when i do i do not evidence can be explained that he was relating the confession and not relating what he saw his whole story he had his conversation with mr mines and it was rather amazing i have three points i'd like to try to make but i'll try to be fast the first is that counsel said the state court did not find prosecutorial misconduct in this case and that's wrong state court said we agree with mens on it that a prosecutor commits misconduct whereas this last may found that the same prosecutor committed very similar intentional misconduct when he falsely told the jury in closing that erik estrada is shoe size matched the other footprint so this is a pattern for this prosecutor i just want to make sure this is not some unintentional thing that happened and the courts now twice found that he committed misconduct with respect to these trials the second point that i want to make is the counsel's argument that there's no there was no way for trial counsel to prove what the testimony was and certainly there was a typo you are seven twenty eight but in that same expert's testimony on the very next page she very clearly says that all three of the victims were excluded as the other donor so if if counsel had objected again and had asked for a read back they could have shown based on the transcript itself what the testimony actually was and that's that excerpt page seven twenty nine and then the final thing that i want to correct is when my opponent here said that the witness said that the shooter was shot that's not what the testimony was the witness said we saw one shooter we covered our heads we got down behind the couch and then we thought maybe we felt the presence of a second person maybe not and then and then once they're no longer watching they heard somebody and tried and convicted of the same first degree murder second degree murder and his appeal his conviction was affirmed in major so they were both charges principals are eight years in the bettors or however they