counsels question of petitioner during the defense case was how to open the door of the marital communications privilege and as i stepped forth in my briefs the three errors made by the district court in this case we're finding that the attorney did not make a tactical decision at trial finding that the tactical decision if one was made was not reasonable and that petitioner was prejudiced by counsel's conduct declaration statement that he made a mistake in his questioning the mistaking that opened the door to the marital communications privilege being waived there was a credibility determination made by the state court that credibility determination contemporaneous record and we don't get the body language and all of that and i appreciate the trial judge sitting there he did seem a little walk for a little bit after saying that he didn't think there was  ineffective assistance or a mistake but just reading the whole evolution of these arguments it comes across that this attorney did not understand what the scope of the waive was on the first day he asked the question of games on cross and gets warned off that's true the next time when he comes up then is with the with his own client on the stand and he seems to throughout think be operating on the misapprehension that you can segment conversations so that whatever he may have asked gaines about about the incident with the dog in the clean up when he was as i recall now i may be misremembering i think what triggered the whole waiver ruling was when he then asked edwards about what did he first of all if he has his client testified that she yelled at him what are you doing hollered at him so she's already given that he's already now testified to one half the conversation  da doesn't address right at that point but then when he asks his client what did you tell her then of course comes the objection to the waiver ruling and all of that it was clear for seems to me from the record that counsel seemed to think that that would not if that anybody would waive anything it would just waive that segment of the ball in his mind conversation that he wasn't opening the door anything that would have opened up the testimony which is really the vital testimony which all happened on the first day does is it just really reeks of the kind i just didn't understand what the heck the marital privilege and waiver was all about well your honor i i believe that i believe that you're correct to a point that well first of all the trial counsel did assert an argument as try that the privilege could be waived as to some matters but not as to other matters and i believe he made and i believe opposing counsel has made that point as well that that was the position taken by trial counsel at trial and to the extent the trial counsel may have been misinformed the scope of the marital communications privilege is not exactly the precise issue as found by the state trial court the tactical decision made by trial counsel which is the subject of the i e c claim was that he was trying to get as much favorable evidence into the record on behalf of the defense while i was always i don't disagree with that i think he was he clearly was trying to get you know edwards view of the conversation you know his side of the conversation to respond to jane's having testified about certain things he makes that clear but what is what i'm trying to grapple with appreciate your comments on is that he he may have been making tactical you know come up close to the line but he had no clue of what the governing long was he just didn't know the relevant case he didn't come in when he was asked to he came up with nothing when he came in the next day before the trial  to explain what he was doing he just had a flat out clear misunderstanding of the law so what do we do with that if you've got a council who is as a matter of legal understanding plainly incompetent successful attempts by petitioners counsel in the first trial of getting in favorable communications so i understand not to but he did it on a misunderstanding of what he what kind of fire he was playing with he seemed to think he could take in time and certainly we argued well or that opposed well i don't my question was there any will else there at the time that said it was plainly incompetent to make an argument that if you ask if you ask about a conversation that occurs on one day you're opening the door to a conversation that occurred the day before well if i if i understand your question correctly your hon question is was there any authority in california at the time that said if you ask a question about a conversation that occurs on one day you are waving the privilege with respect to a different conversation on a different topic that occurred on a different day i don't know of any such case that was on the books at that time  you but if i may continue on the the earlier questions regarding counsel's misapprehension of the waiver are of the scope of the merit of communications privilege that goes to the reasonableness contrary to what the district court believed the circumstantial evidence of petitioners guilt presented by the prosecution at the time the question was out was very very strong if not  overwhelming there was evidence of petitioners motive for the killing his access to weapons one of which was test fired to be consistent with one of the actual murder weapons the location of the body of the victim found by p and his further comment confrontation with mr melton an associate of the victim where he says where he is deny are where in the phone conversation at the end of which he says it works to the effect if you don't leave me alone i will quote unquote ask you to and so all of that evidence taken in view at the time trial counsel acted it was certainly a reasonable decision on his part to ask petitioner the question which allowed petitioner to explain or explain interestingly evidence what he what conversation or what statement he made to his wife about this bizarre conduct of washing his hand with the laundry detergent and moreover that petitioners wife mrs dean was being threatened allegedly by this caller who made the telephone calls just a few moments earlier explain to your wife why you were washing your hands and he says yes already he says words to the effect i was i was washing my hands because the dog wet on the floor or something along those lines without any objection from the prosecution which shows that petitioner was successful in getting some of these conversations in without a waiver having been found later on in the direct testimony of petitioner he testified just of the phone call made by what's going on what's going on and again that's another marital communication coming end without any objection without any waiver also that is also a favorable little piece of defense evidence if i may know there was no objection i agree  that that's been what triggered the whole motion will not not quite your honor she he asked he testified she was screaming what's going on what's going on he's he was going through he in his mind was segmenting these episodes so that he could ask about a conversation about the dog and that would only open up without opening up anything having to do with washing the dog and whatever she might of that interchange might produce on a different day he could within the framework as he understood the marital privilege he could ask about that and then just get the most he would do would be open up a dispute about what he said to her and what she said to him on that narrow subject or why he was standing by the window i know this i understand you may not agree but if that were his think his thinking that i can segment these conversations and he was just dead bang wrong and whether the was clear or not i mean the court certainly seem to t it was square and the deputy da with all our authorities thought it was absolutely clear that he couldn't do it and that was ultimately the basis on worthington is do we just say look an attorney can be screwed up like that be mistake free and certainly to the original i was posing the question the or else well i don't know what was going through counsel's mind at the time he was asking but certainly based on the argument he made following that argument found to be for so frivolous that it would be considered quote unquote using your word stupid and and going back to looking out the reasonableness of council conduct at the time he acted there were thirty a benefit to be obtained by allowing petitioner to testify directly as to what he told his wife that's have to moni about the threat with the only direct evidence which would explain why his wife would go to florida on short notice leaving her family the next day and really if you look at it the the arguments that i've made regarding the reasonableness of trial counsel conduct also are fairly so similar to the arguments regarding the prejudice from that if you were to take the confession out of the equation altogether the evidence that we have left albeit circumstantial is still the petitioner had a motive to kill the three pounds petitioner had access to weapons consistent with the murder weapons the body was found consciousness of guilt and if you take in even if you take out this confession evidence which which i agree is strong evidence it still doesn't mean that the prosecution's case was so weak that there was a reasonable probability that the jury would come back with a not guilty verdict i see i really meant the trial judge is putting in the record that if he was wrong in letting it in and it was clearly prejudicial well i said i don't recall well i don't recall exactly what the second trial court said about the matter but i do remember statements and i'm sure on trial for the only reason the jury heard mr edwards i can fast for admitted supposedly the murder he was on trial for was because of what defense counsel that anyone who does this work recognizes that there are  tradeoffs when the defendant testifies sometimes it's better to bring in the impeachment prior to the price of the clients not confronted with them later in happen in a case where there are mental health issues on the line you have to decide whether a mental health expert is going to go on an athlete knowledge having reviewed unsavory aspects of the client's past that might otherwise not have come in in the nixon case that we talked about a little this morning there was the trade off of where the defense counsel did not the grisly contest guilt in the hope that some of the more inflammatory aspects of guilt would not come into the record that could ultimately be used the only things in mr thomas case where nixon was discussed it sounds like there were similar issues conceding something small in order to hopefully get but in effect assistance nonetheless this is worse i want to talk a little bit about some of the procedural history that we've gotten through one point that i think is getting somewhat lost in the discussion is the prosecutor's objection or series of the objections throughout the throughout the first trial are really irrelevant she could have just sat on her hands like defense counsel shoot himself in the foot and then gone after and say i'm going to be recalling his games afterwards and let's discuss why defense counsel raised a way to privilege numerous numerous instances the primary area where defense counsel first waive the privilege and this was found both by the first trial court and by the court of appeals was in asking the question to mr edwards about whether he told his wife that he was cleaning up after the dog and he said yes about the dogs yes and that was held to be the waiver so we don't even have to get into up after the dogs would have an accident right and then said indeed you tell your wife without that and he said yes about the dogs yes and that's where the waiver occurred that allowed this against mine and everybody relies on well while the trial courts went down the list of questions the defense counsel has got going to see the go go see your brother and then about the dogs and then the question of out about what happened the night when the phone call came the following night and that and the court of appeal also expressly held that the waiver occurred when defense counsel asked the question about to mr edwards about cleaning up after the guard defense counsel i submit had a fundamental problem not just with defense counsel so he asked for authorities the prosecutor came in and gave him two cases on the attorney client privilege which the defense counsel proceeded to read on  and the prosecutor says yeah i can find that referred to in jefferson i and defense counsel's theory of that case and flat out accurate that it involve one conversation that one the spouse the wife said showed one thing and the husband said showed another that involved a single conversation from that defense counsel argued that it doesn't follow necessarily from that case that if i ask one question about one pound versation i thought open the door to another now turns out to be wrong but what about fraud even have a cell shall we say incompetence well first of all as i said the issue is the question of that is really the question about the dog's defense counsel sitting around waiting for the prosecutor who object to help him out the fact that she objects that question following like not about the dogs i don't think helps his situation the dog question this gains woods was going to testify and did testify he never said anything about that so that brings that if we have to fit this precisely into the worthington the worthington paradigm it fits when you focus on the question about the guards but the broader principle that defense counsel did not understand is that you do not whether it's whether it's whether we put it under the privilege heading or we put it under the relevance heading that you do not get to put on your version of a disputed series of events and prevent the other side from putting on its version and that is the basis on which the issue was argued throughout all the prosecutor's comments the trout were our group premised on the act we read the judge's ruling was premised on that theory and i'm looking at the the attorney general's opening a mess in the house was appellant responded that he had alone another context this statement about cleaning up after the dog might not of thing confidential it was in the instant case because appellant was on notice that gaines would tell a different version of what appellant had told her about why he was cleaning the floor which was a confidential communication by testifying about the subject matter albeit in appellant self serving in its goal for a version he invited a response from ga version of events as in where they took a pellet should not be allowed to go through going to france by portraying a particular subject matter in a favorable light only to silence his wife's contrary version of that subject matter by claiming the privilege now what's noteworthy about this discussion is that they're not really talking about privilege lot all because whether or not the statement about cleaning up after the dog is confidential doesn't change its format based on subsequent events in litigation you that the the statement is either confidential when it's made it's a confidential america merrill communication when it's made or it's not what the attorney general here is talking about is litigation posture which is you do not get to put on your case about disputed events the way that you want to and go ha ha i have a privilege that keeps the other side from putting out its version of our spirited events the way it's worked the way it wants to and that is the global fundamental fl counsel's thinking regarding a regardless of how developed marital privilege law was at the time that this all happened conversations mr edwards testified under oath in court i was cleaning up after the dogs mr edwards testified under oath in court i got a phone call someone threatened to kill me he later and so we took off and he explained later on elaborating on that in the world that testimony that could have been gotten from ms gains on crossed i don't think that i don't see any and i don't think the attorney general has pointed to any other than the possibility of somehow fruitage discrediting her by calling it was unexplained so he in order to get rid of at least one of those he had to get out that they didn't flee because he did it but rather because he and his wife were scared of a third party threat so so faced with that that was sort of like his only way to explain it was to  got on a door in flight so he testified that he received a threatening phone call and you don't have to introduce the evidence that i told my wife someone's just well there's so much then there's no explanation for why she is she is afraid and goes with i mean not the explanation is his testimony properly shaped under oath on the stand that he received  threatening phone call by people who said by melt from melton presumably that they threatened to kill me and my wife and that's why they fled the additional and i told my wife oh somebody just call this number  as long as you don't go into the conversations the privileges of held mr edwards did ultimately explain walk you know his why he fled not just because he got the threatening phone call that why didn't you stay home call the police and so on you know that they were going to take him out you know one way or the other so i think the flight i think the flight was explained i disagree that the circumstantial evidence case is so strong that there can't be a finding of prejudice in this in the they focus on the presidential aspect of introducing the only in a circumstantial evidence case the only direct evidence that the client admitted testified that he committed the murders or the charge grimes i would also i just want to talk a little bit more about the trial court rulings because i don't think in a way i don't think they're adverse because what the trial court rulings well down to is defense counsel wants one who wanted to help his client and and then he blundered and he didn't know the law and a lot of attorneys who are found in effect just want to help their client they're full of good intentions they want to help their client but they do not investigate the case adequately they're ignorant of the largely commit other fundamental errors so i would say on the balance of the entire state court record the district court did not air at all in a finding that the defense counsel was ineffective in allowing the confession the murder to come into the record and be that the case on this record of the circumstantial evidence was prejudicial toward has other think i guess i just have one clarifying that i wanted to be very you know i certainly was not under the impression that he had for the conversation between edwards and his daughters yes right but he doesn't say anything about the need for the conversation well and so i just want to know is that what you're pointing to just so i know that that's important that's the portion your honor sir first of all with regard to judge fletcher's earlier question about ms gaines testimony and what happens without the confession without miss gainst testimony are i should say without the confession ms gaines testimony is completely bolstered by petitioners admission to be participating in the insurance scam so without the confession her testimony becomes even more credible and furthermore without the confession or without the statements about what the titian or told her about the threat there was nothing linking her leaving california on such short notice to the threat she testifies she doesn't want to go she is leaving her entire family and haven't planned ahead of time to do sell so without that testimony from petitioner evolve the conversation all we have left is her flight which she doesn't want to do by the time of trial gassed and where she impeached it all to try to discredit her testimony to show that she had an animosity toward him well look the impeachment testimony came in in the context the of the  test before the waiver was even found petitioner got on the stand and cost to the fact that he participated in the insurance scam and if the if the confession evidence was removed there is nothing left for him to explaining he was cleaning up after the dog there is nothing left there's nothing for the jury to infer i should say the jury is left in a position of titian or acting weird and