thank you good afternoon we're here for a special seating for the case of stating versus davis and i understand them on behalf of appellant mr newton will be presenting the argument unless we have questions for mr james tucker you may perceive thank you question of deficient performance and in that respect i'm going to discuss deficient performance around four gatherings of evidence the evidence relating to the side thinks the blood as i know you discussed on lee the expert witness and the people the declarations that said that various things including that the splay general allegation here is rd party culpability and i believe i will be able to demonstrate that in each of these areas the evidence could have shown it was somebody else other than mr stat but did i think judge burton is asking did you make an argument in your briefs to us about something like ballistics showing that it was really a rd party couple ability no i'm going to be discussing the evidence that was presented to you the problem is that normally we do not consider any argument that is not explored explicated in the blue brief so we have her stand that you want to talk about it but do you agree that ballistics and only in the statement of facts i mean i think i believe we set out the priors of most of the evidence that i think the issue the issue for us though is normally there has to be a distinct argument made not just a statement of facts that could potentially support an argument a detective david actions logic and  e actions testified as a gang land expert or the the prosecution that he came in to as part of the prosecution's case he said that he was an expert in gangs that he was familiar with the east side do things that the east side troops were known to him to be a violent hispanic gang that their target tory included the area  do skills that was on a merit in the living room he testified that in his opinion that graffiti was not authentic and that in his opinion the eastside dukes did not murder the mother and the father now there were there was some cross examination and there was testimony from the principal assistant principal so saying that that's true but with respect to the deficient performance the trial attorney was aware that this individual or someone just like him from the sheriff's office was going to be appearing at a trial here standing that mr tire said later i think that he asked for money for a gang expert and it was denied is that correct my understanding yes it makes it ineffective assistance because the trial counsel was i believe turned down for the gang expert because he didn't make an adequate showing on his ninety seven dollars application the point really being is there was going to be a gang expert by the prosecution right trial counsel was aware of that fact that he did not have his own gang expert and had he done an adequate investigation had he performed what i believe is a standard of competence under strickland he would have found somebody like dr morale is but exactly what is the problem that he didn't tell the trial judge that the government was going to have a bank with this or is the problem that he should have found a gang witness and put in a declaration that from the gang witness saying specifically what he would have said or was given that he asked for the knowing that going in that the the again lying gang land expert was going to be essential he didn't have one he could have had one he could have no hijack and one we know he didn't get money to put one up we know he didn't have one well there was none in the there was no gangland testimony from the defense we know there wasn't because he didn't get the money to do it so either he was so we don't know whether he had an actual person well if he didn't get it and he could have gotten it then that's deficient performance because he should have had an expert in the courtroom to rebut the testimony of of detective actions i mean that testimony by saying in my opinion the eastside dukes are not responsible for this murder of that the mother and the father essentially only points the finger directly at the petitioner and i agree with you there's extremely questionable but it's just complicated by the fact that he tried to get it tried to do something about it well  attempted to do something it's sort of like the argument that was being played put forward in the other claim involving the promotion of contract association the attorney didn't get nd counsel because the court said you didn't for gang expert in your view should mr tire have done that he did specifically with respect to requesting money for an expert he should have indicated to the the the judge in the department went to one hundred who approves these kinds of expenditures he should have indicated that people were going to put on an expert  involving a side duke's they offered testimony similar to this at the preliminary hearing and that he needed to rebut that do we have his application in the record it would be in the clerk's transcripts of the ninety seven  applications can you point to a place in the record i don't have a specific reference to that to that right as i'm sitting here standing you know w we don't have all that much time together and i would appreciate and less my colleagues have a different view of assuming for the purpose of this question that the performance was deficient i would appreciate your comment on why there was prejudice in view of the evidence that was presented concerning what sounded like confessions by here client and the other evidence that  of that transcript which is  in the the volume of exhibits attached to the state is petition page one hundred and thirty nine he says i left to get something to eat i came back and found my parents page one hundred he says i'm telling you because i didn't do it from page one hundred and forty five he says i mean we ain't did it i didn't do it you didn't do it he's talking to this informant named john nichols but there's a lot of other evidence too he talked to his friends about killing his parents he talked about wanting to get money on account of their death he was seen carrying i think i'm bad with numbers but i thirty eight  revolver with him the day of the killings and there were portions of that tape that sounded a lot like i mean i did it but i'm going to deny it so how do we factor  well i would say that have to take a look at the entire body of evidence that was produced that the at the trial it with respect for example to the batter about i'm going to kill my parents the testimony was that the people who heard this they were out playing basketball and they said that they thought it was a joke and that he was laughing and besides you know how that's laughing can mean more than one th you your honor he's a twenty four year old boy living at home with his parents he's never really been in trouble before he had i think a total of fourteen witnesses i put him in a footnote who talked about his loving relationship with his mother and his parents have been gone two weeks on vacation he spends the day cleaning the house doing the law and in anticipation of his parents stabs his mother to death now what doesn't make sense is that he was there's no record of that when he was taken to the police department he's not under the influence of drugs he's not under the influence of alcohol when he comes home and sees the bodies in his house he runs immediately to the next door the gun shop there's no gunshot residue on his hands  it to me it's a reach to say that because his parents had three term policies of one hundred thousand dollars each that he he ambushed them  the minute they came home from vacation that's that's what you have to buy and i say that that is a thing you spent a lot of time in other aspects of the timeline but the part of the timeline that seems most difficult to me is that the parents apparently changed your shoes or something just and you have to ask yourself if if he was doing this to kill his parents so he with he could obtain money there's a heck of a lot of other ways to do it besides having a massacre  in your living room two hours to two or three minutes after your parents come home now with there's only ten minutes well the the the testimony specified that the time of arrival was lev forty now i've gone through the timeline and it's in my brief well i'm not sure i understand your point when you say there are other ways to do it if there are no other ways to get that three hundred thousand dollars which was a lot of money at the time to return you for your own so what did you mean when you said there are a lot of other ways to do it if if if there was a financial motive to kill his parents to obtain that money i don't think he hundred thousand dollars he could have asked somebody on the east side dukes to do it for a couple of one thousand maybe but his parents are just coming home from vacation there has been no indication of any violence or threats between  there and they're just saying there might have been another way to kill them right well and sure i mean her again you if you're starting with the assumption that he had planned to kill his parents the minute they came home from the vacation that he was going to shoot his father and stabbed his mother to death and that he was going to get that the three hundred thousand dollars then i suppose that would fit but i'm suggesting that that doesn't really make a whole lot of sense talk specifically about the declarations from his friends that were submitted in the hades and st of all i gather there's an outstanding procedural default question which hasn't been decided in this case is that various friends of his and seems to mean that in terms of talking about harmlessness it is nice to know what we're talking about so the to me the most relevant evidence was the evidence that he well st of all there is material in there that would have provided a motive for a lot of what both for the east side duke's i e evidence that his father don't know about his father's there was a motion in limine and that and and trial counsel made that including his father including his father i see but and then there was the evidence about the side dukes came by and the next morning and said we got them or something like that and the district court and did up discounting that for reasons that i didn't find terribly persuasive so the question is how important with that evidence of then well it could have been very important st off it should be noted that you're referring to robert joseph era bryan ellis and quincy murphy they were all called by trial counsel in the case he had met with them he had interviewed them sensibly he knew that in fact they were prepared to testify to that but he didn't put that into the ca efficient before the california supreme court they came up with this information that the morning after while the police were still there the eastside jukes drove by and three of them said they'd said two to three of these witnesses we got him those wells and the only one of them testified that that's what he said there was one who talked about hard stare some they had to slightly different versions but only one testified i think yeah we got some i think was the time is getting away from me i want to go back again on the question of the fish and see as it relates to the timeline so i'd like to ask about that because it seems like you have this commercial in the television show and the sound of the gunshots that puts a time on the gunshots very precisely but i don't really understand why we have any real confidence down to the minute in when they left the party can you explain how why we think anyone remembered exactly when they left i don't i can't explain why they remembered it all i can say is there were two witnesses and they said they left between eleven  people remember i'm just not sure how a stronger timeline argument as i have trouble understanding how it could be impossible that they could have gotten home the police officer said to need that drive in twenty four minutes if the if they left the  the areas where i thought there was deficient performance because he could have gotten a toxicologist and someone to explain the effect of alcohol and driving either way you look at it that's twenty eight point four miles good afternoon scott toral from the attorney general for the paoli i i read the briefing in the record the way same way that it seems that the court does in terms of what the pieces of evidence are that are issue and at least in the briefing and those are the statement by the passers by in the car and again experts declaration and regarding neither of those two pieces of evidence can state and show either deficient performance or prejudice  they may be unknown to us and they may even be an unknown to them but they may well recognize them and they were quite definitive about it so i don't really understand why we're acting as if there's something and i mean they're i  description or anything like that is that in order for these statements to have been admissible somehow you'd have to have more of a foundation than that well that's right but this is what the real question is should the on this question what were they how did they know where they were did they know who they were we have no idea but but the the burden in the state court which is what we're looking at under two thousand two hundred and fifty four dollars d one was on  petition was on state and current occurred to produce declarations that would show that he's got something and to show that because this is ineffective assistance of counsel not only to show that there is somebody claiming credit supposedly but to show that there was  that any reasonable attorney should have put on and that the failure to do so would have been deficient and when the statement like yeah we got offered to prove the truth of it yeah we meaning my gang that yes i do if we will indulge that presumption godam would be hearsay it would be without foundation there would be no it would not need any kind of exception it's further more speculative vague and ambiguous i think it would have it's not it's not ambiguous and and we don't know for a fact that they didn't see a lot of police commotion on the corner and decided to drive by and say yeah we got him we don't we don't know all of these things and in terms of whether an evidentiary hearing should have been granted we have to look at if that if say it was fleshed out somewhat more you know we you know we've seen that car before we know it belongs to spay dukes i don't know the guy's name but i know he spayed joke and this is the kind of thing they do  and when and i know what they said and from what they said i and i understood what they meant and i don't think that's an miscible just as the graffiti would be admissible i e that somebody was claiming credit for  this crime and that doesn't mean they did the crime but it's at least some indication that the gang had something to do with this or at least was interested in it well it's more i would say it's more than graffiti that sort of leaving your calling card it's more it's a statement and it's being offered to prove its truth and you need to show trustworthiness and you can show trustworthiness on a record like this but regardless plenty of this do we have any indication that the lawyer investigated this claim that  the drive by bragging had happened i mean maybe we would know more if he had investigated it but what we do know from petitioners declarations from these five people well only three of them heard it but from these people and from mr interviewed all of them and then and several of the don't but then the the declarant say he didn't seem interested then when we were telling him about this bragging but clarence said that they told they also said that they told the detectives i'm not sure whether it was in the murder books i have not checked but i would assume the murder books would have all of the murder books meaning that come compilation of all the police reports would have been produced to the defense to defense counsel discovery to i won't speculate about whether he had it but i think that all of but i'm not sure i understand your point about the police the murder books what are you saying oh that would be another way that trial counsel would have would have had the information anyway and i don't know about that about the declarant saying this you mean and i believe that that piece of evidence even if assuming he did come in a statement of this nature would not explain or deny or in any way prevail over the mountain of of other people say that he did and then after the murders that gun is nowhere to be seen it's disappeared the only piece of evidence we even have that could possibly explain where that gun went is the statement that the  referred to as the confession to nichols about having gotten rid of it that is pretty he said he got rid of it for forest parents came home that's what he said he said because i i don't recall that he said he got rid of the gun before his parents raised him very specifically in the in the we're in the conversation with nicholson is recorded i'm sorry i don't recall reading it that way but on top of that we have his palm print underneath the graffiti the fact there was no signs of forcible entry on any of the gates we have the fact that the spray paint was the same time was the same type that matched the type of spray paint that was found in the closet in the state house the fact that state was wearing blue jeans that night that evening and it was something that he customar often and blue jeans were never found again in the house and they've searched thoroughly for blue jeans they never found a pair that would fit deon dreyer his statements that were mentioned here to friends and family members about or friends of family members about killing his parents there was more than just that one incident while playing basketball he also told family friend he was a bit wots about how he would take his father out and that his mother would never hit him again and he told her that he also had told her repeatedly about being upset at his parents plural there were there was the timing of the phone call from the aunt after midnight when the neighbors heard gunshots before midnight and and the distinct they the exact time that they heard it whether the exact time that they heard it there is there is perhaps some wiggle room but they heard it before midnight they heard it during the night when broadcast that ended at midnight and they distinctively heard one gunshot pause and then two and that exactly fits the way the prosecution theory would have happened with the phone call part of this didn't entirely make sense to me because i guess the state's theory is that at the st phone call from the aunt the parents were already dead but he says they're not home yet and i'm about to go out and then on the nd phone call he says they're home but they're actually and they're still dead that's th essentially the theory yes so i don't really understand on that theory why he would have answered the phone the nd time it doesn't really make sense right like if he had actually just done this murder he told to and he was going out wouldn't he just not answer the phone the nd time i don't understand that people don't always do sensible things especially when you're in the heat of pressure of the just murdered something there are things that he did that don't make sense i think though that not not because they don't make sense in terms of that he didn't do it but they but but that if somebody had hindsight two thousand and twenty two really think and plan but the odd thing about that nd call when he said they are home is he never offered to put them on the phone even though that that's normally what he would have done according to the answer if it was something sounded strange to the ante even in that the fact again there's no forcible entry the palm print the blood all of that the gun the statements and this specifically the statement i'm going to i'm still going to blame it on the dukes all of that evidence and then let's look at the gang evidence and aga explain the fact that a gang expert but much of that much of the declaration of dr armando morales would not have been admissible that there are some things the gang expert would have been allowed to testify to david watkins the interesting thing is that even though the tire didn't get to call his own defense expert he was able to accomplish much of what would have been admissible from a defense expert through his affective cross examination of watkins he but  different argument i mean i don't i have the same question as judge burrows on about if if the judge allowed watkins why wouldn't the judge have allowed someone like morale it seems like if the judge is a little allowing this to allow it for both sides and your honor i don't and i was referring to cry just there but we're on i would not i don't know why the court the trial court that is denied the request for an expert the fact is we don't have that denial as far as i can tell when you say it would have been inadmissible it doesn't seem like this trial judge thought this kind of test was inadmissible oh i don't mean over all again expert at all would not have been admissible i meant that much of the things that are in the declaration of dr or alice would have been in so what's the type of stuff in morale is this declaration that wasn't also in the state's expert testimony actually actually what i would argue is that a lot of a lot of it was in the state experts expert testimony in a manner that tire was able to elicit favorably to the defense for example regarding the graffiti although he testified about how hispanic gangs typically use straight lines and angular lines in their graffiti on cross examination tire took him step by step he showed him photo exemplars of genuine east side duke's graffiti are things that watkins admit were genuine with curved letters and got into a myth no no sometimes if they can use letters and he got him to go step by step letter by letter through the graffiti that was found in the living room and with each particular letter except for the st and last he said there is nothing about the way that letter was formed that tells me this was not genuine gang graffiti and he and the same thing with the type of paint he got him to admit that he would expect that a gang member who's broken into a house murdered people in the house and is in a real hurry to get in and out of there might not right in the same way that somebody would right in six foot high recollection is nothing because i could not find either the thing that i found was the declaration from trial counsel stating he requested an expert and that was you know i did that and the actual request is not in there by so we don't know whether it was good bad or indifferent russians like it would have been a complete record but we have but it's but i've not seen it might be there i might have overlooked it i searched through it i didn't see the specific request for a gang expert in those other various request s but over all tire's cross examination of sergeant david walking's was very effective and one very key point that he got him to actually flip on was that he testified on recross that initially when he was given the case he believed this was a gang related crime and directly testified actually i testified i think i never believed it was then he he got him to say acknowledge no no actually when i st bought this case i believed it was again crying what that tells me is that when he read the initial reports crime scene things like that the people's gang expert is testifying that nothing from that ruled out it being the gang word are to him and the reason that significant is what it shows to me is given all of the the other gang evidence that the defense was able to present both in the defense case and in cross and in the people's case combined with all of that that the that the reason the rd party culpability defense was likely rejected by the jury wasn't because they were impressed that the east side dukes could not possibly have committed a crime of this nature but that the east side did commit this crime because all of that other evidence pointed so strongly to dion restate and that i believe was the reason that sergeant watkins also who initially believed this could be a gang related crime eventually dropped out because of all of the evidence that said well regardless of whether the gang could very well have committed this they didn't because all of this evidence pointed to do under the state there were a few points i wanted to be he was there could you speak to what you understand to be the status of the procedural default arguments in this case yes yes the district court did not rule the district court noted that we raised them and decided it's more expedient to deny on the merits under two thousand two hundred and fifty four dollars d one and express we said i am doing that i'm not ruling on the procedural bars so that when there has martina's issues is that a reason for not doing it i mean we are talking about a trial counsel i see here and with it raised by the the original lawyers where these and i believe the issues about rd party culpability i believe was the to kill or issues with these particular declarations yes about about seeing the drive by statement and all of that i believe that was the initial sta sit down so the way and that would have been one of the more efficient at this point for us to have briefing on the procedural to fall because otherwise we could be just spinning wheels i would be happy to do so your honor it was so be on the certificate so far but i would be actually i did actually i did you did briefly a little bit i mean you said it was rare right i wanted to acknowledge that argument as well if the court needs further briefing on that and yes of it wasn't briefed to just record it all to you know yes yes we raised it  provisions of so it was all of that litigated i don't believe be up beyond arguing you know of for full length written legal are giving but i don't recall that there would be a hearing on things like how frequently this was invoked through not invoke not harmless just a such which is a little more for k perhaps and the and i mean what what strikes me about this case is that i have no is not the we always see the phrase overwhelming it's certainly not over well in his and high at least debatable you could if the jury had come out the opposite way i don't know if anybody would if it all that surprised so in that sorry just just just as a point of clarification there was there was d n a testing done at the time it was fairly novel and i don't know that it was advanced as what we have now but d n a testing was done at the time and then a stipulation was reached between the two parties and that was because because the d n a testing as i understand it was not was not at the point where it would be specific to an individual it was specific down to five percent or something right and it was like six percent of the african american  community but because of that the party stipulated but interesting thing about the d n a in the blood is that you understate and took the witness stand and that admitted that he cut himself earlier that day in blood around the house running around trying to get a band aid so let me go back for think that in comparison of what could have been presented the key to this and maybe this answers judge resigns question the key to the prejudice analysis would be looking at these pieces of evidence and looking at the big picture of  the trial evidence that actually was and just seeing with these pieces of evidence you together even have made the difference a reasonable probability but then through the layer of the a p a could a fair minded jurist the supreme court california supreme court have found that these pieces of evidence when viewed in the in comparison to all that was presented there was not a reasonable probability has been around so for example i must say had an incredibly impressive resume in terms of his knowledge of these skanks now again i don't think his is the form of his declaration was a little peculiar but it wasn't all that different from what watkins actually testified to in  terms of structure but he certainly as between the two of them a home room or about these gangs he probably did in terms of or at least he didn't know less but it was pretty knowledgeable but what  essentially dr morris or somebody like him could have testified to for the defense is simply in the areas of could a crime like this have been committed by the east i did not was it committed well that's true but martin said no and i and i would assume that was pretty important to the jury you don't think so but when he said no i mean but he had but then he admitted later that this is the kind of crime i believe that i believe that the impression the jury came away with was no because all of this other evidence shows that the andre state was the killer not know because there's no way you know because like the bottom line the jury is supposed to find i mean i don't really understand how that's a gang expert testimony at all events it would not it right then it would not have been for dr morality but i mean we do we do have in in the context of gang enhanced mintz and other types of crimes we have opinions we have opinions on whether a crime was likely committed for the benefit of the game similar to things like that i don't recall that he went to the ultimate the ultimate question and said no do you under a state and committed this murder not that i could mow he did say that the east side dukes didn't conclusively i mean he got a hypothetical which was exactly this case and he said they did right and i and he said that they don't i mean he said things like they don't go into people's houses when they're there and if and if they had seen them they would have backed out they would have left and they hope things that just seems incredible that he could actually know any of that but he was allowed to say it all and later in his six you know had twenty six years or something experience with this gang and he was certainly presented as somebody who could know all this but then on cross examination he admitted no gang members do sometimes commit burglaries they do sometimes go to a targeted person in law and wait in their house and attack them there or problem and of course the whole here is that the declarations say that actually it was the father at least but him and then we have the fact that the trial lawyer nichols who frequent at that house during those two weeks but about about that motive about i believe that it was a very reasonable talk tical decision at least the california supreme court could reasonably find it was a reasonable tactical decision when you're trying a death penalty case not to tell the jury the st thing you need to know about my client is he's a drug dealer who associates with gang members sounds plain it sounds for it's probably sufficiently reasonable but in fact if  he and his father were worried and fact at odds with this gang and in fact as watkins testified the only circumstances in which they would do a crime like this is if they were at odds with the gang then it the gang threatened to get someone that they would then follow up and try to do it over also how they presented evidence of drug dealing by mr stay in that would have undermined his penalty phase strategy and he had to know  that that was a real possibility we often see cases reversed for ineffective assistance of penalty phase and we don't see that here overall i i don't know if my time is running short you have two and a half minutes on the clock but  i would i would sum up bison vice by saying that the california supreme court was reasonable in rejecting both prongs are either prong of strickland on this ineffective assistance of counsel claim and that this court should affirm testing had ever taken place what happened is valerie sure testified there were there were thirteen blood samples she examined the thirteen blood samples and came up with an opinion as to six the all the same it's not the father it could be either the mother or the petitioner a stipulation that blood was sent asked as counsel says but that it information was not put in the record what happened was the the district attorney proposed a stipulation from page two thousand one hundred and eighty of volume twelve and he says in the stipulation the parties stipulate that the blood was sent to another company and here's what they came back with and you're saying it basically is all inconclusive though i'm not i'm not sure i understand what point you're trying to make with this how does this help you well it would help if you were to compare the two to the testimony of the criminologist with the results of that stipulation they're completely inconsistent more importantly the blood samples that were taken were the mother was found in the way you're trying to argue that it's ineffective assistance that he agreed to the stipulation i didn't make that argument in my breast i'm not i'm not really sure where this gets you all together because i do think your honor's mentioned would it be nice to have the results of the d n a testing of that blood we'd love it if we ever got to remount back to the district court we would love to have that blood retested by current d n a analysis but but  this is part of the not that there is a procedure in california for doing that excuse me i thought there is a procedure in california for doing that there is a procedure i believe in the state courts just said in california  procedural obstacles but there is a procedure all right i also don't understand where we are with the procedural default arguments in this case because it does seem that the state raised the procedural default problems and i didn't notice you responding and so now i wonder if we also have a waiver of a response or what do you think we can do with the fact that there is a pretty ruling by the state court and the state has raised it and i think you have responded  this case is going on for twenty years your honor i believe we've litigated and we briefed the procedural default and i believe when the case was still before the judge king he ruled and i believe that he didn't deny the procedur fault but i don't have that information and i think because it seems that if there is a procedural default problem i mean i know you're trying to seek an evidentiary hearing but it might be easier to resolve the procedural default questions or maybe they should be resolved before any evidentiary hearing anyway i get a little turned around about where we are procedurally if if if this is i mean i would be willing by by letter brief or whatever to go back through the record and see if i could find or judge can rule my recollection is he did rule on the procedural default it was raised at the very beginning of the i mean even if he did it seems like now the well i guess the state and i mean they've they've argued it in their briefs now as a problem that's a live problem so i mean even if the district court at some point made a ruling i'm not sure we can just assume it was