the court my name is david senior i represent blue for days deputy district attorney ferry van aust believe that the need for the unimpeded testimony of vander james was so important that he lied to the trial judge telling him that james was getting no deal for dismissal of two felony charges in exchange for his testimony deputy district attorney terry van os believe that the need for the unemployment testimony of andrew james was so important that he lied to defense counsel telling him that james was getting no deal the dismissal of two felony charges in exchange for his testimony exchange for the few pending felony charges and that's false and he had no truck and he had no notice or knowledge of that at the time he said that diddy that's false evidence that's not answer my question did the witness know at the time he answered the question that he was getting more than immunity for the crimes plus the witness protection program and the other concessions that the jury did hear about i will answer that question yes he did know now because he was given a round trip plane ticket from florida to travel to stockton to testify against blue for days with the knowledge and this is told by officer lingo that he could get right back on the plane and return back to florida without having to face charges and we have  these charges two years after being charged he still hadn't been arraigned for the charges he knew what was going on now what transpired in the district court is the petitioner made a motion asserting those two facts and under some attacks the attorney general then has an opportunity to challenge those two facts but the inference is that james knew about the deal and what the attorney general did in important is what the jury knew and what the jury knew is that he was getting a deal well it was all right so if the jury knew that he had lied on the stand that would be one thing and that's the way a lot of these come up with the fact that the witness does know he's got a deal and he lies there for his credibility is at issue but on the facts of this case as i'm asking you to assume jane isn't lying he's misstating  the fact the fact is there has been an awkward but he's not party to that under my assumption is worse than the constitutional violation if only the prosecutor knows that it's not cruel to par it's the presentation of false evidence and that is this follow here's the baseline for the prosecution good a good evidence here's really good prosecution evidence james testifies i got a confession for homicide better evidence for the prosecution james testifies i got a confession to burglary gets better changed now testifies i'm not getting a deal in exchange for my testimony that gets to be the best that's the evidence that's in front of the jury as opposed statements the same story basically before this deal was made to dismiss the other felonies now and i think that's one thing that i thought that he i thought t chronology of events january one the homicide takes place january one james know that he's a suspect he knows he saw someone seeing him leave the scene and when he called the police the police told them they had a witness someone watching him leave the scene so he knows he was potentially on the hook for a homicide for burglary for accessory charges on the sixth of january it's reported that he talked to the police no statement was taken nothing in james's handwriting no court reporter took anything down nothing was recorded on the steps that the investigator take to make a report of that january twenty ninth after james was picked up on charges on january eighth and january sixteenth and after james sat down on the sixteenth when he was arrested and gave a statement with the court reporter taken by the d a with the police officer sergeant wales sitting there taking the statement that statement was taken at eight fifteen or eight forty five on the sixteenth in the evening after they had arrested james and charge them with felonies so it's interesting you're in for sergeant lingo did prepare a report of his interview on january the sixth but it was still quite early it was three three or four weeks after the sixth and it was two weeks after he sat there and listened to a court reporter the statement being taken from james now on this on the sixteenth james is concerned that he's going to be charged with homicide for excessive burglary and now he's going to pending felony charges that he just picked up on the sixteenth as well as he had a probation violation  on probation he had a five year state prison sentence suspended sentence for so many burglary that he's sitting there looking at on the sixteenth he gives the statement thing during haze on the sixteen so with all those motives to place the blame on hanks now on the seventh when when did he get the deal the deal what is the record shows to when he got the deal that is another felony unrelated felony charges would be dismissed the same day that he got immunity february seventh so that's after statement on the sixteen right but so was my get back to my first question didn't he make two prior consistent statements with is consistent with his testimony before he had this deal he made to not saying you couldn't impeach him on other grounds that didn't make two prior he needs two statements before he got the deal when he had the motive to finger hey well then if you just answered my question yes of the three at the start i think you know i would have had what i needed to know and i'm sorry counsel help me with something else about james as i understood it seems wasn't really very important to figuring pays for the murder the real evidence of the blood and so forth critical and that also he's admitted that he killed the victim he just said that  was self defense basically that it looks like what's important about james is that he said that they pulled the cigarettes from the victims  that correct that is correct and that is a very important part of james's testimony so it's not murder well a confession like no other evidence is the most damaging to the defendant i don't know what's the defense story what about the other witness who says who corroborates that the cigarette story is the other evidence enough of the jury would have believed the special circumstance witness who says that she saw he put the cigarettes in the car and also the circumstantial evidence of lauren could tell down to his room that there wasn't a leak in his st well the jury was perfectly free to disbelieve everything he said just like any other witness was not and the only evidence for the leak in the sink is that the guy killed patel says that was told because there really in the office telling to tell there right testifies and the transcript page twenty five sixty two that she never saw hayes with cigarettes or money get her to testify street times that a j told her that hayes ripped off the office and on two times the district attorney attempts to rehabilitate her to get her to say that she heard it directly from hayes three the first three times out of her mouth without it tempting to be rehabilitated by the d i heard it from a j but we do have the testimony from bertha may why you saw him carrying a box to the car after the murder twenty six seventy five seventy six per m a y it testifies that she sighed james carrying something in the parking lot to his car a lot of commotion back and forth seemed like james was moving out but she didn't know that she thought here james sorry could you give me that pain page number again twenty six seventy five seventy  carrying a box i don't believe so ok he started drinking at twelve had was suffering from d t s by age seventeen heroin addict ritalin  school he would have seen probation officer record broader sense morris shepherd and fernandez all who had mitigating insights about petitioner including that his violence was as a result of drinking that his home was known as  there was presell evidence of alcoholism and heroin abuse  all of these things could have been examined certainly a mental health examination alone would have been telling as to what the root cause is it's one thing to know that someone's an alcohol someone's a heroin addict but the bigger question is why are they now so if we were to agree with you on your first point would we ever need to reach this issue in all  on the first the first claim that we address in our brief trial counsel spent two point seven hours with you for for a whole lot of lawyer before trial counsel didn't he go through several lawyers he's had other other lawyers before trial counsel so presumably yack he's a lawyer at trial at a fire is there any plus whatever those lawyers have done in the way of interviewing the defendant i don't know what was in their file as far as interviewing the defendant or preparing mitigation evidence and there's no evidence that there was anything in  defense her defense is only guilt phase defense is only namely diminished capacity i think he was concerned that after being at seventy two hours without any sleep shooting heroin three times and twelve fourteen hours before the crime downing a bottle of brandy going and buying a bottle of thunderbird wine and drinking and and shooting ritalin within the twelve hours before the crime whether there was a diminished capacity defense and that's what his his declaration says and i can i'm not sure what that normal is but it certainly wouldn't be normal like the rest of the world feels normal and that information alone i believe would be grounds for counsel to be investigating litigation evidence whether or not good rises to the level of diminished capacity any defense at the guilt phase it certainly is mitigating evidence that would require an investigation but backing up for a second when i said the challenge spent two point seven hours total with hayes that was on that day and the day after he was appointed to represent him ten months later the trial began so he did no investigation he didn't even talk to his client to know what might be out there he never retained an investigator to look at mitigation he never retained a mental health counselor he never retained anyone to do social history examination he never looked into all of these things which are obviously leads before him that need to be investigated i'm sorry i don't like what happened to his request for funds to present the expert assuming that with further investigation things would have gotten better but the fact that you just three cited are entirely consistent with dr cavanaugh telling his attorney sorry there's just because someone commits a cold blooded murder does not mean there's something mitigating you can say to them yes absolutely there's plenty of mitigating evidence that would be available to say on his behalf both with respect to what his mindset was at the time i mean let me explain where i'm coming from on this in the u s supreme court decision that goes your way wiggins it follows the usual model there's nothing mitigating at trial and then on the heaviest petition the of powerful mitigating evidence presented with the petition to show what the lawyer could at present that at trial had done the proper investigation and preparation in your case i don't see that there is all i see is the assumption that if a person commits a crime like this there must be something wrong with him if someone commits a crime like this there must be something wrong with them that's not that's not the issue that's before it needs to be book are they going to be if you're playing with my question and you're not understanding what i'm getting at model all in wi three weeks later september twelfth one thousand nine hundred five an excerpt of the record fifty fifty two we were ordered that we could not make a request for investigative funds we were ordered that we could not make a request to discover have received zero dollars to do any investigation into the mitigation evidence in this case now i can give you the facts and i can pull the facts from the record to say there is a basis to go conduct an investigation but i am not an expert either its social historian psychiatrist psychologist learning disability expert or anything where i can take that and analyze that evidence discuss it with the petitioner and bring you the mountain of evidence but what you're saying is yes it's true we don't have a mountain of mitigation evidence like wiccan's but that's because the court room you sleep the night with money to investigate and i want to know how not saying that if i make a request for investigative funds to look into this and the court uses its discretion and says now i've looked at your request i look at what you want to do in my discretion you're not getting any  fines that is challenged on and an abuse of discretion there was no discretion used here we were precluded from even asking the judge never thought oh maybe that's a basis to go look for something maybe that's a basis to give you money to go retain an expert brief summary here we filed a petition containing sixty three exhaustive claims kneejerk reaction attorney general files a motion to dismiss numerous claims as being procedurally defaulted rethink everything three thing rick to this court a footnote during the course of these the briefing on the summary judgment the court without request by us ordered evidentiary hearings on claim forty seven and claim sixty one where there were  allowed for those two particular issues one of his failure to be present at the defense or at the penalty phase a trial and the second one was on the plea bargain so there and when there was an expert for the his failure to be explain to me why you don't if that issues important why wasn't the defense and titles and evidence are you hearing on that well just backtracking or again i think there is another portion of that opinion in which he does come out and say finding of fact and perhaps an evidence or hearing is required however i'd neglected or i forgot to mention that because that there was a deal and made their analysis that way they also reached the materiality issue and materiality issue even if even if i cha prepare witnesses not in criminal cases but in my communications with witnesses i had lots of discussions with them about what was going to happen when they were called up before a jury and the like and i wonder how are we disposed to sit here and know whether what whether and what went on in the conferences between james's attorney and jane's maybe he didn't get told directly that there was a deal but there are lots of ways that testimony can be influenced because somebody comes car because there is and i reproach to archie twenty six seventy one seventy two and twenty six seventy four she also said she also saw later james carrying something through the  it there was evidence that they drove around prior to going to police it changed explain not he explained that he was already in trouble with the police he didn't want to get involved and it was jury was also affirmatively made aware through the prosecutor's questions that there was no deal and strike the walls and therefore instead of having simply a witness who's been put on the stand with a subject to impeachment scenes did or did james not really know what was how was his testimony being influenced by his lawyer that was the point i was raising earlier and i find that to be extremely difficult  seems to recite i realize the facts there involve perjury but the rule of the supreme court stated seems to me if i recall right that it's a due process violation for the prosecutor to put on false here but taking him out of the picture i think the language in that case was that the prosecutor cannot knowingly put on false evidence including false testimony so in reading that it appears that's not who he was referring to return false evidence you're referring to both physical as well as testimonial evidence and it includes false testimony if the case only has testimony as evidence and that's has the money is not false then how could it be filed i think i might have to see that opinion with me on the bench here but i thought it talked about false evidence including perjured testimony that i believe the language is including false that's right not even when the question is this is now redirect by mr van i asked questions by mr van os and would you tell the jury what if any anything any deals for any promises or anything else that has been made in the right question we have a case called united states versus look page and in that we quoted extensively from the supreme court's decision in a few versus illinois  you the supreme court's if a conviction through the use of false evidence known to be such by representatives of the state must fall under the fourteenth amendment and then we go on interpret in a few to say that we have to reverse unless the false testimony was harmless beyond a reasonable doubt this is the standard chatman analysis so instead of a materiality question false evidence known to be false by representatives of the state when there's a deal between the prosecutor and the defense attorney that is not communicated to the defendant it's whole purpose  can say without perjuring himself there is no deal when the prosecutor knows that there is so it's knowingly putting on false evidence and that would seem to lead to the conclusion you and look that we have to apply trackman analysis we have to reverse because it's a due process violation unless the false testimony was harmless beyond reasonable doubt tell me understand you're going about materiality that structure why are you drawing a distinction between the presentation of false evidence knowing use of material false evidence by the prosecution whether it's documents whether it's testimony whether it is any form of evidence the circumstances for felony murder the courts have never referred to either changes testimony or garbage testimony so that was just not critical for the death penalty determination if if we get to the materiality question or the harmless error question soon we don't adopt a fifth circuit standard that says we have to apply correct we don't use reasonable probability we use any appreciable likely or you know harm the say or basically you then concede that we have to reverse or do you argue that that this error would be harm looked for money and there after when you went back to his car cigarettes were in his car that were placed there by  before ordering the killing order to come up only afterwards and there's a fair amount of evidence that if you start this believing james that from which a reasonable jury could conclude that this was an after the fact plan for example james says i got out of the car the suggest i think a reasonable jury could believe well you know after patel was dead he just comes over to james and says hey you know what let's go into the office well that's all from now one of the strongest piece of evidence for james credibility money from me and tied him up or that his then girlfriend to go down to look for additional money and it was reasoned that those circumstances show that his could form the five but one of the reasons why it's not relevant here whether james knew or not is the issue there was framed by the supreme court in the few was and i'll read it to you the question presented here is whether on these facts the failure of the prosecutor to correct the testimony of the witness which he knew to be false tonight petitioner due process of law in violation of the fourteenth amendment but executive rise to a person a reversal don't we still have to strict standard of materiality with a very low threshold and a very high degree of grave doubt that it impacted the jury because it involved a corruption of the truth seeking process counsel to the to the district court apply the right standard here i'm looking at page seven of the district court's findings this is where we have a just the conversation about this suggests strongly and in that same paragraph the bottom of page seven the district court says that there is a