the court twenty eight years ago today these ten percent one nine hundred seventy eight trial began in a california courtroom that resulted in the jury finding earl lloyd jackson guilty of two burglaries and two first degree murders one of her anita curtis and then approximately a week later one of gladys ott the jury also found to be true to special circumstance allegations under california one thousand nine hundred seventy seven death on the case as i understand of the state is is is not appealing the grand as to be as to the penalty which which means that if the state wishes to seek the death penalty you will have to go back for further proceeding state court in state court on the death penalty yes ok and that you don't contest well the only thing that's before us today at least on the state's appeal is whether or not jackson  death qualified is this is an appeal of the special circumstances were we to grant the react then you would have to go back for ford for sentencing but without the ability to sense him to death if we were to reverse the district court's grant of the vend we would find and were to uphold the special circumstances then as you proceed in state court you would be able to seek the death penalty once again that is correct ok so you are not here per going your p l of the death penalty here  circumstances were in effect reversed then before then before the but then before jackson could be even remotely sentenced to death again the california los angeles times history attorney's office would have to retry the special circumstance part of the trial and that's what if you're trying to preserve the opportunity to do that when we want to avoid another trial on the special circumstances if you did if if if he was not if the court this court reversed the district court with regard to its grant of the rapist the special circumstances then what the los angeles county district attorney's office could do would be to have a penalty trial a brand new penalty trial and seek the death penalty if and that would of course involve aggravating and mitigating circumstances this or whether the death penalty should be imposed on jackson if however this court affirms what the district court did in granting the writ with regard to the special circumstances then the choice facing the los angeles was that that he committed the murder and that he committed the burglary yes i have have you have you spoken with the l a district attorney's office to know that in fact they will think the death penalty i do not know one way or the other your honor i ha admissions that jackson had made them about killing two older women and even though the prosecutor did not disclose evidence that could have been used by the defense to impeach those two and further did not correct their false testimony and even though jackson's  then impeached and they would not have been impeached because the jury still still would have had before it evidence that both mcparland and nichols when we counting jackson's admissions attributed to him statements that included details of the crimes that from the jury's perspective in one nine hundred seventy eight and one nine hundred seventy nine confirmed the truth of m testimony about jackson's admissions those several of those details matched the crime scene in the top autopsy evidence and some of what jackson told the police for example there was no evidence before the jury that mcfarlane was a participant in the killing of curtis and on yet mcfarland knew details such as jackson entered ots apartment through the kitchen window and that's what jackson told the police and that's confirmed also by the crime scene mcfarlane knew that jackson was concerned about making noise in jackson's fate and the police he said he had directed anthony not to let mouth loose so she could haul her or something mcfarlane knew that jackson had beat out well the coroner's testimony about her injuries many of those could be caused by  are two issues there tonight issues two two concerns in determining the effect of failure to disclose and failure to correct false testimony one of those issues is the whether  e affected witness was the centerpiece of the prosecution's case whether whether he the witness was the glue that held the prosecution's case together th was was whether the second consideration is is whether what would have impeached the the witness would have had any effect whatsoever on the jury to tell him to be able to tell him where the money was when he demanded of her until he left and in his words to the police she was  snoring she seemed passed out he placed himself in the room and when he was in that room ot necessarily have to have gone from the state of consciousness to the state of what he told the police explicitly was that he had hit ot once on the jaw he admitted to hitting her once on the job he implicitly this follows your honor and bear with me just for a moment this occurred right after he was brought in to talk to the police not brought in he turned himself in to the police but brought right into the interview room and there was an initial conversation your honor in which there was talking about how the police have been looking for him for several days and he said well the last time i saw the police was when they came up to my apartment and talked to me and asked me about those only if i knew anything about those old ladies deaths and i said in hindsight do you really think he was that smart and calculating to be able to do that when you're facing invest judgement i think anyone smart enough to figure out that that's what they have to they have to explain injuries as a whole what happened to her in that room the use of the bottle reflects the speaks an intent on jackson's part to annihilate her too to from having committed a brady violation because the prosecutor didn't know what the police detectives knew and so we can't impute that knowledge to the prosecutor i'm just wondering recalling how he first connected up with her but she was the conduit for the connection on all the cases michael's to jackson and jackson i collect with the officers in long beach police department  lives the same opposite there and there was a confidential informant named speak and the same situation occurred with somehow the brady impeachment evidence just not ever disclosures to the prosecutor and i mean to the defense attorneys and it turns out that mr goldstein was actually innocent now we know that mr jackson is unlikely to be actually innocent that it does raise the as times were twenty years ago and one of them and one of the key differences is that it was not until the late ninety eight that the judicial legal community was shocked  he went forward and shown how he could sit in a jail and start making phone calls and get information that was what was the subject of the grand the whole grand jury proceeding that was the reason there were all sorts of new procedures and it was the practice of those detectives according to their testimony that if an informant gives a statement they go down and they moralize it well they waited for four months until they say  and the police claimed that me from and gave them some kind of statement we're not exactly clear exactly what was in it but that was around october of one nine hundred seventy seven i thought that i thought that mcfarlane testimony was that he was even housed with jackson didn't overhear a conversation to other inmates until november of one nine hundred seventy seven and it wasn't until late january or february of one nine hundred seventy eight that he was finally had an opportunity to to get over close to jackson and pressed him for further information i think it was holmes who claimed that he heard overheard this in january and february of one nine hundred seventy eight i thought mcfarlane gave a statement in october seventy seven perhaps you're right maybe it was november of seventy seven but the point is the tape recording of that statement that was not until february of seventy eight the police waited essentially for months and that was the time that mcfarlane and michael's warehouse together as trusts these in the l county jail of course this was never one of the trial so actually they they were together collaborating in effect as to what was going to be said regarding mr jackson at the same time t listing was schooling michael's of value how the system system work and the grand jury investigation that later came about made it quite clear that this practice of schooling informants  about it and in fact the legislature passed a rule about use of informants was any of that how do you respond to counsel's argument that they would not have been impeached because they only confirmed details that were either really learn details about cases contact let me tell you what's bothering me about this the california supreme court found that we had both and a few in a brady violation here and i don't know why we should revisit that judgement as to whether that's under california law whether we've got teeth problems doesn't really seem to matter to me we've got they've had there's a few problems and a brady problem here and this information should have been disclosed the basis of the california supreme court decision was that there was no prejudice so i had to pay two things first but jackson corroborated all of these details in his statement to the police and second his admission that he killed these ladies was confirmed by a number of other  witnesses now could you address that evidence because that seems to me to be the key the critical the critical evidence i'm i'm i think there's been a few of the brady violation i'll tell you where i am i think there's an appeal to brady violation the question is prejudice and i want to know why the california supreme court after having looked at this obviously a closed case got it wrong well there wasn't other evidence in the case that was sufficient to satisfy the requirements of the special circumstance special circumstance requirement and as you're aware of course is that they have to prove beyond a reasonable doubt that mr jackson was present personally present and that he personally kill mr more personally circumstantial evidence as the forensic evidence in the apartment and what he told his neighbors and what they testified to at trial that you have to start with the informants first i don't want to start with the rely on that statement as true then you have to look at the full statement what he said in that statement first of all he was clear that his intent in entering the apartment and throughout his being present in the compartment was to steal never to kill in fact you mentioned during the post arrest statement that he did not want any contact with mrs ott he said quote i wasn't going to go into the room where she was no way and the choked he said i didn't observe any choking of course he didn't choke her and he didn't observe anyone choking her he did acknowledge that mr smith struck her once in the mr jackson said he probably jackson probably hit her on the jaw once and shot her but that's certainly doesn't show any intent to kill and even eth even empathy mr jackson had been present in the apartment while others were attacking and his statement did acknowledge that he knew when he participated in the brutal beating of the elderly mrs aat that only a few days earlier the elderly mrs curtis had died from a similar assault in which defendant also participated that's defendant's own statement to the police went a long free to give that a preference if you if you deem it appropriate we don't believe there's any bar from this court adopting the findings of the referee as long as the california supreme court didn't reject those findings i think you're free to give it a presumption of correctness and even if you didn't give it a presumption of correctness i think you're fearful certainly three two because it's part of the record to decide that whatever reasonable probability that the verdict would be different if there had been disclosures and the i'm sorry paraphrasing here but the nap who standard is quote any reasonable likelihood end of quote that the false evidence could have affected the verdict and i think that is there any significant difference between those two standards well the way i interpret it it's pretty close but not by saying any reasonable likelihood seems to be a  less severe standard to to find but i think there i think they're pretty close it's actually they both looked at whether the trial was fair and if you consider the impact informant's testimony i had on the case in terms of the intent to kill and the fact that they would have been severely impeached had the brady disclosures been made and had it been revealed that he specials i don't know they don't mean the the a g like to count pages i don't think that's what's critical thing what's important is the substance of the argument just like in the reference hearing when you have testimony from the defense counsel who believed and it's testified that the informants testimony was quote the guts of the case in terms of proving special circumstances that's a factor to consider also a factor to consider is then went when the their case i think these are factors to consider but you you comes down to the evidence and looking at the impact that the informants testimony had on the proof of special circumstances and clearly it was it was informants parrot back to make it appear that that the the the post arrest even of the defendant is accurate because the argument always says well how did the young and foreman find out about it unless the defendant walking out of the bedroom miss mr jackson went up to her and beat her then mr zotz retreated back into the bedroom mr jackson continued to to beat her into unconsciousness then mr mrs i awoke from claim that their claim that mr jackson told them about how he inflicted the physical evidence on this was not and without those informants you would you would have completely different case and and  and he said what are we going to do with these young blacks one think the share you're not going to take them off take them all out you're not consume dump you're not going to take them out put them on a boat and ship them back to africa you're not going to take them and ships them in one state they are here to stay and i was astounded and then i went back and started reading the trial of this particular the jury wackier and found his mr jackson's attorney state are you living now is not the area that's getting surrounded by blacks haven't you noticed your property values are falling cancer it doesn't he i mean isn't there some validity to the argument that he was trying to elicit any prejudice that might be the in order to challenge jurors did evidence prejudice racial prejudice oh oh there could be certainly valid like your question to ask me if you'd be prejudiced by saying and would this is a case that involves for example two elderly white women my these this may not have been the most artfully conducted very dire that one would want to see but it seems that he had an objective which was to ferret out any racial attitudes and biases and and that was  strength you know that was a strategy that was that was there was a lot of the in the state courts at the time i was this you know i was a state court judge for a number of years and i know and i'm very familiar with these kinds of questions and the difficulty imposed not only for judges but for more years and i grant you what you the words that he used in the questions that he used a lot to be desired and if he had thought it through or if judge franken had been a little bit more on top of it you could put a stop to the form of the questions that were being think i understand that you disagree with his with his tactics but this was that this was an effort on his part to sort of draw all of this stuff the sort of that is to make people hyper conscious of their own racial attitudes by blowing the whole thing up it's a risky strategy but it's hard it's hard to sit here and say that there's no justification whatsoever and that this is utter incompetence to try and raise everybody's racial consciousness to the to the surface it's an exaggerated effort i read that was certainly a polite way of phrasing it what it did was introduced racial prejudice into a trial that did not have to have a raich a racial element invite by motivation but that but but that should have come in the that that was not a racial case the only thing that made it a racial case was it was trial councils in fact repeating of racial stereotypes and racially derogatory statements about blacks and he should have object then to michael statement there was no reason to think that the racial prejudice the racial comments by counsel is your strongest argument for reversing the guilt yes i think that mr jackson was subjected to an incredibly racially biased trial by his attorney it was racism permeated that trial one of the key fundamental tenants of our judicial system is is is a fair trial and injecting racial prejudice is into this trial deny him that right rights that he must not only through this government appointed attorney virtually assaulted him with racial gracious racist threats but that to obtain relief you have to show some prejudice about that and in that case the only thing that had happened was the attorney had told his client information that was set forth in the grand jury report and he has suggested that mark nichols and ronald and farland might have learned the details of jackson's crime including such details not go through them all but mark nichols attributing to jackson a statement that he picked up a bottle next detail is being attributed to well maybe he read some police reports here is the problem your honor the bottom line there has been no allegation in petitioners petition for writ of habeas corpus that that is what has happened in twenty eight years of litigation there's been no presentation of any evidence that that is what happened and far more fundamentally he has not alleged it in his petition and that is the end of that allegation investigated he could have found out there were contacts between the two and argue that the jury but the fundamental problem with that report of the referee your honor that that portions of the findings of the referee is that under california law california supreme court has said that extraneous findings of a referee we appoint if we if we do not adopt those findings those are extraneous and they are relevant and that means that the findings of the referee which were not adopted by the california supreme court are not findings of the state court of competent jurisdiction as i understand it what the referee said was that there was some evidence that nichols and mcfarland had an opportunity to talk and therefore the counsel could have suggested to the jury that they excluded the referee did not find that they had in fact spoken with as both of them denied and repeatedly in their testimony before the referee that they had had any contact or for trial and some of that other than incidental contact and they certainly there was nothing in front of the referee to show that they have colluded with each other but your honor even if assuming for the sake of this argument today and not agreeing with it but assuming that the worst case scenario for the people's case that nichols because he had such incentive to to benefit  he learned not from jackson but from mcfarland and therefore added you know said well yes i heard it from jackson when he really hadn't heard any of that from jackson the jury still would have been left with the fact that at least one of them had heard those details and that would have been far who came into the prison into the jail system earlier and and one nine hundred seventy seven then because they had heard the statements that jackson made in november october or november spoke to the police in february of to the prosecutor in this case in said would you please give me some benefits sentencing that's my client for his cooperation in this case and what the jury would have heard was that the prosecutor said no no sentencing benefits then mcfarlane's attorney replied well if you can help on the sentencing could you at least would you at least be willing to write a letter on behalf of mcfarland so he can serve his his prison time in arizona rather than in reports and other things that could have been turned over had been that they would not have been impeached so i took that to mean that they're that you're are you saying that their evidence i mean their testimony there's not a piece of us that reasonably could be taken to put the whole case in such a different light as to undermine confidence of the verdict if the impeachment stuff would have had him and the confidence in the verdict is not which doesn't apply to brady  see to respond to argument of jackson's counsel that the form should not be believed and that and the closing argument was yes they should be not being told things that are contrary to exactly what i'm reading i mean it's right i think you should use it if you run out of time to tell us your strongest argument but you know how you what you think is your very very best argument why we should only to attend trial every day in jail clothes but he was repeatedly pointed out to the jury find mr jackson's attorney that these were jail clothes in addition to the the both the court and the and the prosecutor and the trial and the trial counsel all late in the sexual assault bottle evidence after the court explicitly ruled that any evidence relating to the bottle and relating to the vessel injuries on  would not be allowed in the guilt phase notwithstanding that the evidence came in through the doctor the evidence came in through that farland the evidence came in through michael's and and then bizarrely at the end of the guilt phase the judge acted as if it had never come in and said of course you know we had part in the guilt phase and was only going to come in in the penalty face but that the nature of that had nothing to do with any of the charges there wasn't a sexual assault charge yes it line there was no evidence one way or the other nothing came in about fingerprints on the bomb that two of the witnesses testimony came in through their preliminary hearing testimony which was not although theoretically subject to cross examination at the time wasn't subject to cross examination at the time of trial after this is completely perfunctory and last minute attempt by the d a s office to find these witnesses which  was pathetic at best and certainly showed a lack of due diligence and then on top of that there are the other other prosecutorial misconduct findings that were made by the district court that they said in an of themselves were not  he laughed when he supposedly when he made the statement tightly in the games in the last supposedly when he told me farland about the bottle and then the prosecutor said twice as you all saw mr jackson laughing and smiling in the courtroom inappropriate impermissibly commenting on the demeanor of a not testifying witness not testifying defendant and then on top of that also making a comment about mr jackson's failure to testify by s refusing to stipulate to mr jackson's age at that time even though he full well knew that mr jackson was eighteen saying you know if if mr jackson wanted that in he could testify when you look at the full picture this just is not guilty there are certain fundamental requirements that we have in trials that need to be respected regardless of whether you at the end of the day you say there was enough evidence to convict him in any sense there still are