good morning my name is john lamb bros i'm here on behalf of mr tony slack obviously the court is aware the certified issues in this case are fairly interrelated but i whether or not counsel was ineffective for failing to not really do much in terms of trying to find information against mr bay come all day who also went by molly b which counsel could have investigated and didn't know forward with six prior arrests of witness yes conviction and i did and i never ever represented that that they were convictions a judge in december and november of eighty nine and then the trial which was very short six every year to two yeah and remain pending in fact until like nine hundred ninety one and and as a footnote to that they were mr bennett was being represented by  the clark county public defender's office who was also representing mr slack so you know it wouldn't have taken a lot of investigation to find out that that mr bay was definitely in trouble with the law  none of those convictions really go through and the reason there is none of that supplies additional evidence of a connection or a motive to lie to mr bay the only thing that you really can just kind of make nothing of great bass seems to be useful for  characterized as mr bay as one of the three primary individuals with knowledge of the case one of whom was dead miss holmes so he put him with mr slack as holmes and mr beck they are the three primary jury for a first degree murder verdict the issue throughout the course of the proceeding starting with opening statement through state's final rebuttal closing was whether or not this was an involuntary manslaughter or second degree murder jury's minds and that was that the gun according to mr bailey was on safety requiring mr slack to take it off of safety in order to fire it there it required a normal pressure to fire now there was also a state witnesses that testifie in accordance with mr slack testified that when he was playing around with it and along to grab the barrel pulling the barrel would have a lot of which would have caused mr slack to pull the trigger that mr slack ran out of the room with the gun the party and in the clear his closing argument the prosecutor also emphasizes that that mr bayh's testimony was critical to whether or not this act this was an act done with  and again it was never really a first degree murder case there was never any evidence of premeditation and deliberation the key was were you know is mr slack's testimony credible jurors now admitted lee mr slack made statements prior to his testimony to police officers that were inconsistent with his testimony but the only the only live witness if you will that could refute mr slack's testimony was mr bay so and he and he had at least and again this sort of dovetails into the evidence rehearing issue and i guess really it's probably a good point to just talk about that with very briefly in terms of true that the outcome was that it was reasonable to believe that that mr slack would have prevailed and what i'm talking about is prevailing on a theory of involuntary manslaughter that's part one part two is did mr slack get an evidentiary hearing in state court he didn't and i think i chronicled the rather perfunctory nature of the state proceedings in the in the briefing but it's worthy of noting just one more time before this before this court mr slack entire post conviction proceeding lasted for six weeks he was in proper person he was twenty one years old he asked for a lawyer didn't get a lawyer he was in ealing nevada anybody familiar with nevada knows that that's a long ways from las vegas  he not even not even knowing that this was going on how do we know that because he filed a reply to the state's answer to his post conviction petition after his release had been denied in the sex party hearing and then to add insult to all of this judge the trial judge and again this happens every day in clark county so it doesn't come as a shock to me but it is i think an insult the trial judge had the prosecutor draft the order without even running it by mr slack so there that that's what happened in state court needless to say there was no state evidentiary hearing that worthy of noting or worthy of any federal death deference so where did the court below doubt instruction here challenge that he challenge the premeditation and deliberation instruction why counsel did that i have no idea since it was the second degree murder conviction and he also challenge the whether or not the  state should have been able to bring in evidence of sexual activity between mr slack and ms holmes those were the issues raised under wreckage below the the meat of this case was raised in proper person by tony slack after the direct appeal had been concluded in a timely fashion he didn't get any he didn't get any lawyer in on appeal from his post conviction relief petition that out of court summarily affirmed without ordering briefing and without giving him an attorney so the collateral to show a strickland claim we don't even have to show that we would win claim just that look there is significant smoke here we have come all day with all these charges pending and  the district or that the court below judge hagan when he ruled on this decision he ruled as a matter of law that even taken these allegations and taking them as as true it speculating here but i'm free to do that since he's never had an evidentiary hearing could have led to evidences of side deals that were never disclosed to defense counsel don't worry about it we'll just hold this case in advance till after you testify these three felony charges now and the other thing that the district court the court below just summarily concluded was well these were all juvenile cases so he would have just been punished as a juvenile again well that was that was incorrect and it's it's my understanding in that that and i'm fairly certain of this that and at the time mr bailey was seventeen that although he was not an adult he could have been certified and treated as an adult so what did mr big get out of all of this he got six months in elko the juvenile detention center now we're talking about a kid who at age seventeen admitted during that his direct testimony that he'd been a member of a gang for seven years and then in some ways it's fairly touching anybody that has children just the thought of having a ten year old son as a gang member as it's fairly daunting but come all just you know no big deal is tony a gang member no he's not a gang member six months and alcohol is no big deal but being certified as an adult and having to do some hard time that would be a big deal what does he need to get away from having to do it give the prosecutor what the prosecutor needs so all of felonies were held in abeyance and then as we point out in the brief  they were dismissed ultimately after the trial that a year after the trial what does all this mean what all this means is that tony slack i don't think he got a jury trial there's no question about it he got a chance to testify he got a chance to look at the jury and tell the jury his story nineteen year old man man child without malice and he didn't get a chance to do that because he didn't get a chance to impeach mcveigh enough tony still in prison h been denied parole and he will continue to get on that second sentence for his first parole so he's going to continue to do a lot more time and believe me and him but this is one thing that i think his lawyer said during the trial  something that i would say to this court we're not saying that tony swag should not have been punished what we're saying is that tony slack didn't get a fair trial and he didn't get a fair trial because he just because his lawyer didn't do what his lawyer needed to do to flesh out what the entire scope of the phase background even if there weren't any side deals and again i'm not i want to make it very clear to this court that i'm not representing that they're worse ideals we just don't know because we didn't get a chance to to flesh that out but even if there were the jury didn't hear about these pending charges and i think that that's compelling enough because really if it all boiled down to is he guilty of second degree murder or is he guilty of involuntary manslaughter this jury deliberated something i was just looking at this morning this jury deliberated about six hours and i get that from the court minutes that are in the excerpts of record at page one twenty they were deliberating between voluntary manslaughter excuse me involuntary manslaughter with the use of a deadly weapon and second degree murder with the use of a deadly weapon and  doesn't have any other question windows and i do have a question would you please tell us and few of the statements which slack made these very helpful you know the second there's the statements that mr slack made to the police and there were three the telephone call or incriminates today the first statement where he says ms holmes had the weapon and she was the one that was pointing it at cam and then finally his third statement which was consistent with his trial testimony they're not good but i think that i think that again this is what this is what's difficult and this is what an appellate court obviously is obliged to do but if  you if you weigh this as as an appellate court viewing the evidence and the evidence as a fact the evidence is effect on the jury i think that there is a a reasonable probability that if the jury had heard that these charges that they that day was perhaps going to get a more lenient deal because he had all of these other charges pending coupled with and something i haven't had a real chance to talk about coupled with the fact that the prosecutor did make some full sexual relationship with the victim and the prosecutor made made that point in the context of trying to paint tony as a predator as well as trying to show the jury that look you know he's he's lied about his sexual relationships with the with this victim and if he's lied about that he's going to lie to you about all these other things that was that was sort of the theme of revival closing was that he's a liar he's lied police he's lied to you about whether or not fair shake with regard to whether or not it's reasonably probable that the outcome would have been different given the fact that the sexual evidence came in and the of the potential impeachment evidence of they did not agreed not to pursue charging him as an adult in the accessory to modicum of action there the charges that were pending at the time of the preliminary hearing and the trial which you counsel order to help him discover whether there was such evidence but i thought maybe it's a case like fox there has to be a preliminary showing that there would be such evidence and that you can't simply ask for a hearing in the hope of conducting a fishing expedition that will perhaps reveal evidence for months that sounds familiar your honor i'm not familiar with the exact hour i don't have a felony charges that were painting regarding the deal just a court found that they were speculation of us but there was no basis for any kind of conclusion or even suggestion that there was in fact a deal for a benefit in exchange for testimony regarding two  they testified that he stood in hiding the murder weapon and that he was looking out for all of these together suggests that based credibility was not terribly strong in front of the jury already well or not he lied about a social security number which is one basis that he'd be convicted as a tax return or as a juvenile and that the only deal was that in exchange for his testimony he would not be certified as an adult so in terms of the evidentiary hearing even if all of the allegations were true all of the additional investigation that slack things counsel should have conducted were true it would not change the outcome of the trial based credibility was already greatly in question and would not have been affected by the additional information provision or maybe i'm thinking of case law all this there's the statutory provision that i can think of pretty had heard was again i believe twenty to fifty four d or e and then they had the towns and vs saying factors actors maybe enron and maybe it's in decision well it's a decision as soon as we can conclude our calendar for the morning and will be adjourned until nine am tomorrow morning