honors good morning andrew frisch for andrew's there it was precisely because a x words were indispensable to the government's case that he needed to be fully and effectively advised about the relationship between his prospective testimony and his defense judge paul never expressed and say x presence but his testimony would have been something she would have considered or changed her mind in not giving the defense the instruction on duress she clearly expressed at a conference that you're focused on that she was making a  terminations and unless he testified there'd be no duress instruction he did not say that in his presence absolutely not she said that outside his presence he said it outside of his presence that's right but what she said was i i guess i have to hear his testimony to see whether he raises direct as it was a pretty equivocal statement followed by an assertion that she'd need to do she never had a dress case before and she was going to need to do research right well i don't i don't agree with that interpretation judge she said she was going to do research would be for that she said that she believed that his testimony was indispensable to the to whether or not she give an instruction but one way or the other i just quoted the transcript i guess i have to hear testimony to see whether he raises direct as your honor i the record speaks for itself the fact of the matter is different arguments after he decided not to testify there was a rather extensive argument as to whether a dress instruction was never appropriate the defense counsel never said to zack the importance never explained to him the importance of his testimony to whether or not the judge would charge under arrest we do we know from the record or from  what if anything his lawyer told him long before this conference about whether he should testify and whether he would have any chance of getting a direct instruction if he did not is what we know judge lynch we know that xanax affidavit is under about it there's no word butting affidavit from the defense lawyers in response and judge paul reasonably assumed that there was no discussion of that sort at all and she decided not to hold a hearing on that question what this is what is an interesting question to me is your argument here solely based on the duty to keep your client abreast of everything that happens in the trial or is it based on the slightly different proposition perhaps that a defendant is entitled to be given competent advice about the pros and cons of testifying both the it was incumbent upon defense counsel to explain the relationship between the do things to things to the extent the records ambiguous that the appropriate remedy was to send it back for a hearing  petitioners presence following the discussion as to whether he was going to testify she then raises the issue of durant's and says we won't know until mr testifies and then she says or would you ask for a dress instruction even without his testimony and then defense counsel says probably he'd be asking regardless and then judge hall doesn't rule she says well we'll have to talk about it but clearly in his presence she's discussing the fact that his testimony in her mind would be relevant to whether there's going to be addressed defense that's all of it i think there are portions of the record where a defense lawyer would understand the importance of say decided whether the defendant's testimony was going to be an essential requirement before she would give addressed the record your i understand your honors and i understand you're just lunch judge lynch's point about the ambiguity of the record about the extent of the advice i get that but the record that your honor has the record that the court has is that there's no discussion on that at all we asked for a hearing on this i believe it's telling that there's no rebutting affidavit but ok have a hearing have the lawyers come  testify wasn't about what precisely no discussion about what judge paul said at that particular conference or no discussion about the way his testimony or the affect his testimony might have on the likelihood of a dress and structural ladder no discussion about the relationship of his prospective testimony to getting a charge under arrest the record court has is that there is no discussion between attorney and client on that pivotal issue when you say the record she  and so her opinion is predicated on even assuming that there was no discussion there is still no constitutional violation is that is that a fair statement what you the way you interpret the record i'm not sure i understand it  not say no one we never had a discussion about the pros and cons of my test of testifying and you know i would be if there was something like that i'd be prepared to consider the possibility that that then it doesn't matter what judge paul says then a competent lawyer trying to figure out you know what is one of the pros and cons of what my client testifying or not for the record reflects that there was a kind of i mean there were conversations about the pros and cons of regardless of whether you think you have a path to address instruction without his testimony and you go argue that to the court it seems to me a key pro is depending on what  lawyer the story really is telling that story might get you address instruction clearly while without that testimony it's a real long shot no the problem is that all depends on what ziad tells the lawyer he would testify to which is something else we don't know because what he appeared with the testimony of the officers is is that the last story they've heard is the one that was reported at trial that he says in his affidavit he was misquoted he had four lawyers there and i don't see anything from any of those lawyers submitted to corroborate his account that that's not what i told the agents i disagree with regard to whether the gun was in the car the most complete the most complete statement the most carefully recorded statement i submit your honor was the last one there was no proffer agreement they act came in with his lawyers and answered all questions it was a free shot for the government to ask him anything they wanted to elicit whatever admissions they wanted to make a record because the trial was imminent and that statement nothing about a gun being in the car so i disagree with the premise of your daughter's question and that most complete statement there's been instructed and and had he testified that there would have been a dress instruction well if the judge if he test if he proffered or testified that the gun was outside the car and we can talk a little bit about the time element in the significance of that he would have qualified for instruction under arrest i submit to the court most respectfully don't you wonder and if i can i'll move or time but if i can if i can go one let me step back for a  d it is not plausible on this record for the government to have argued that say x intended the robbery in the st place or intended a murder in the st place we're litigating here the elements the ingredients of escape the fact of the matter is that he met with rivera the victim at one thousand one hundred and forty two and he told his girlfriend to live ten minutes away i'll be there at midnight and he had to be at work the next morning at six am there's no evidence of his involvement with guns or violence of any sort and then she calls him forty one times between midnight and two or three am and all the calls go into voicemail something unexpected happened so we're talking about tourette's not in the comics not not in the context of whether he lied whether his consciousness of guilt was regards to the murder or the robbery because that's not plausible i think it's impossible but it's not plausible we're parsing a little of what it takes to get it in a direction instruction and the record the court has is that they act was not advised about the importance of that prospective instruction to his prospective testimony he just wasn't told about it and i hear your honor's point about that ambiguity i noticed in preparing for this i think it's more bad drafting on my part than anything else but don't take my word for it it's a serious case send it back for a hearing thank you name is brian leaning and with the united states attorney's office for the district of connecticut and i'm here on behalf of united states of america this is not a retrial of mr zak we're not here to decide what a jury has already decided and what t objective leone reasonable and if it was whether there was prejudice i think it's important to give as to the st issue as to whether or not their trial counsel was objective and reasonable some context it's important to know from the very beginning from before the trial ever started trial counsel was representing that mr zak would testify that was the defense from the beginning in the july th conference again that was the representation by trial counsel that mr zak would be testifying at that time they had submitted trial counsel had submitted a request for duress defense and at that point in the trial no evidence at all had been elicited about the circumstances that happened inside that car about the murder of mr rivera that trial testimony came in the following day so when the judge was inquiring the judge had no factual basis to even understand the basis for the rest the fence hence the equivocal inquiry like well i guess we'll have to wait and see what is  e it's an affirmative defense of there must be some evidence in the record to support it so i'll have to see what that is the judge paul never said he must testify before i'll give that instruction certain is nothing in the record that would indicate that and if you put it in the context of the trial counsel telling the judge that my client's going to testify that's the only way that evidence is going to come about and that's the only basis for addressed defense is through my client's testimony the judge is like ok well let's see what happens she doesn't make a ruling and so even though we're assuming that that conversation never occurred between trial counsel in mr zak why would it because all at that point in time he's going to testify and so there's no reason to expect or to comprehend the significance of that the rest offense under those circumstances fast forward two days now the trial testimony has included the four prior statements of mr zak to law enforcement and that testimony has come in and is now presented to the jury and to the court and at the conclusion of the government's case there is still a representation at that point in an expectation that mr zak will testify but at that point a request is made that you or the judge asked well there's maybe some he may not testify there's a there's a discussion he has a filing made a decision the judge is fine do you want that the rest offense anyway they say yes and then in the presence of mr zak she says well i guess we're going to talk about that because the facts are not so clear that you would be entitled to that and again that's in mr zack's presence then there's a recess then there's a pretty extensive between the judge mr zak about weighing the pros and cons he was in fact absolutely i've considered them my lawyers we've spoken every day about the pros and cons that is effective representation yes as to his decision to testify so was you know would it be helpful i'm always a prosecutor i always think the more information the better of course that would be better but it's not necessary and it doesn't reflect on the objective on a reasonable miss because if you think about it in this context standard much higher than the supreme court said it should be in strickland which is it's it's not a minimal standard but there's a standard where there's a lot of trial strategy and so we sort of go to the prejudiced part which i think sort of helps in the context at that point in time let's assume that mr zak would have testified as to the th version which is the affidavit that he submitted in support of his two thousand two hundred and fifty five motion that would be the th version of events and let's assume that for purposes of preparing your client to testify that he would have told his lawyers this is what i would say that if i was called to testify and the lawyers are sitting there thinking well that's different than the one we just had with you well we were all present in the room in the u s attorney's office with agents and for lawyers and now you're going to tell the jury something different i don't think that the rest defense is worth it and i also think why wouldn't it be worth it if he's convicted there's a mandatory life sentence is there not correct on the on the kidnapping and  the felony murder so you have to worry much about obstruction of justice findings if the judge doesn't believe him i'm not saying in the context of that i think it just increases the chance that the jury will reject his reject his story find him incredible and be more likely to convict him and i think if he doesn't get the duress instruction then i mean i think i understand the idea that if there's if there was if the jury was going to be asked to considered arrests then he might be better off taking his shot with whatever he told the agents and trying to explain away rebut the government's contention that you see that shows he had an opportunity to escape then tell me affirmatively gain from the jury i'm telling a story that they're going to disbelieve and then that he's lost but if there's not going to be any instruction to considered arrest at all or any idea of what duress is a defense that's a pretty big problem for but the record is the judge paul didn't decide duress until after the decision not to testify right and in fact defense counsel said i'm going to be requesting a duress instruction regardless of whether he testifies wrecked and that was all done in mr zack's presence in the courtroom again i i understand why he wants to make this all about he never he's got an affidavit that says the lawyer never told the client something arguably significant to that choice but regardless of what judge  says and regardless of whether it's an open question i think i'm still telling my client luck you know here's what the record is is now or here's what the record is going to be about  the burden on a lawyer to be effective in advising the client about testifying is basically the same as what the law is with respect to whether to take  because we don't have a lot of case law about whether you know i think the troll almost says or maybe even says there's no obligation to give good advice about this all that matters oh it makes for a competent lawyer is saying you have a right to testify it's your choice and that's not what we say about guilty pleas which is also the client's trades we don't say it's going to the lawyer says hey i'm out of this you decide whether plead guilty or not and then i'll implement your strategy where has to give reasonable advice about what's what he thinks the client should do i think that you know the jurors prudence about whether or not a criminal defendant opts to exercise his constitutional right to testify is given to significant deference a defendant is entitled to reject competent and it has to be that person particular person's own decision and i think but is he entitled to get competent advice or whatever the content of competent advice would be in a given case i think the standard is the same throughout the entire trial using title to effective assistance of counsel and i think that would apply to each stage of the proceedings whether to advice him of of his right to testify or not work to do any other aspect of the case this is pretty darn sparse least from my examination of it as to exactly what the standard of representation is and it's clear you need to advise the client it's your choice when you and you have the absolute right to do it but once you get beyond that as to how much how informed as to client of his evidentiary value of the year of your potential trial testimony is not ineffective assistance of counsel but i don't think we need to spend all of the time i think the prejudice is a much more problematic and i think that's why in fact i would be the easier way to decide yes and why is that and that's because the defendant can't prevail in establishing that had he testified consistent with his affidavit and had received the duress instruction that the outcome would have been different  testified or maybe it's not if he testified consistent with what he were outlines to account that he would be entitled to address instruction or do you disagree i still disagree with that because as this court not to spin  held that based on the trial evidence which was that mr alone with the murder weapon in the driver's seat while gonzales was out of sight down the hill struggling to dispose of a two hundred and thirty two dollars bounty body no rational jerk could have thirty seconds to sixty seconds but the gun isn't really a significant player because he's dragging to two hundred and thirty two pound lifeless body of mr rivera down the hill and he's in the car with the key ignition as soon as he's out of sight down the hill he's got to do is step on the gas and it doesn't take thirty seconds to do that and i think the one last thing i know my time is up is to sort of in part about you know we talk about how this the rest offense was so pivotal in the series to your honor's your point is that the murder rate what is he got to lose he's looking at life is that the rest is sort of a legal who wants to what his real defense was i didn't know he was going to do it i didn't form the intent i didn't intend to rob him i did not intend to steal the marijuana from mr rivera gonzales pulled out a gun unbeknownst to me threaten mr of air and two minutes later he shot him that was really the defense and that didn't change and it wasn't going to change with the rest defense and it really wouldn't affected the outcome and the defendant i don't think is carry his burden thank you your ass judgment your question about the analogy in this situation to a guilty plea i mean it can't be because it can't be that a lawyer effectively represents his client or her client about the right to testify by hand by giving a handout but this is your right to testify read it and let me know if you have any questions the purpose of the lawyer the purpose of ineffective counsel is to talk about the right to counsel in the context of the case  unfolding before the lawyer on the client right then and there and on the record you have the court has there's no such advice the judge decided not to have a hearing there's a there's a gap in the record as to what the substance of those pros and cons were i understand from from this morning that your honour's may be reluctant to reverse simply on the record as you have it but it seems to me there should be to fill in that gap that which the courts have expressed concern there should be a hearing but rather than speculate about all prejudice if we accept that he would have testified in conformity with the affidavit you're saying that he would have gotten that the rest of fans right yes he would have gotten an instruction yes and why is that i mean so what has changed the key variables between the testimony that is in the affidavit and what i think the prior testimony is there was less time than was what in the notes in the nd circuit opinion so not two minutes thirty seconds and the gun was not with your client but was with his and the other guy who's dragging a two hundred and fifty pound body down in the bank i think those would give him the instruction under arrest and counsel was wrong that there was discussion of the gun at that last most important a long term ignition and he hit the gas thirty seconds that's a fair question for the jury one of the reasons why i don't know as a matter of law these that i'm so what the nd circuit said in this case where he sat for several minutes in possession of a firearm in the automobile where his they were the other individual was not present and was in fact down on the that's not enough to justify it to arrest defense right i don't mean to trivialize the question by giving kind of a silly analogy to answer it but one way to look at it it's like being in the supermarket and the line next to you is going much faster than you were is and you're thinking should i should i go should i stay should i go and in fact if you make the wrong decision here you get shot and it's not in significant answer to your honor's question that what judge hall says is that a reasonable person would have driven away and risk getting killed staying and getting shot i'm not sure how that supports the decision not to give a charge on duress but i think it shows what a difficult factual question this is and why it should have been given to a jury just the way the court a panel of the court in paul p a u l cited in our papers were reversed even though the defendant in that case gave a wholly implausible account of why he was entitled to a charge of duress the judges the judges effectively said look we can't assess credibility as a matter of law an argument that you made the last time in front of a different panel on a direct appeal i made that argument before different panel on direct appeal that's right and what's new  s the fact that there is this discussion an absence of proper advice about the right to testify and whether the waiver of the right to testify in the case judge sullivan predicated on the influences of andrew's words and words that established consciousness of guilt which is not the strongest kind of evidence in the government's in the government's arsenal your honor to the extent you don't want to reverse i certainly would urge the court to remand for a fact finding hearing to fill in the gaps that the record