i'm more of a paper lawyer so the public speaking this court told the district court in its prior order to determine whether or just your t s petitioner's trial counsel told her that but said the petitioner understood from what ortiz said that she would be convicted of the special circumstances and that the only sentence she could find was l wop so the magistrate even in his own order did question his interpretation of what this court had told him to do in this one narrow region but then he failed to sort of step back and see what else this court had allowed him to do in the hearing and because he did not take that step back he did not fully consider the issues of what questions would you have liked to have asked but you didn't get to ask  i was not petitioners counsel in the hearing i think the questions i would have asked would have focused exactly on the the interaction between ortiz and ms holmes who was eighteen she's you know at this point when she's arrested she's a recovering drug addict you know the supreme court has told us that juveniles and she's unfortunately right over the edge you know they're there they're thinking isn't totally forgot so what questions should council have asked and sort of forced the magistrate to say no g pretty complete hearings and the magistrate is entered credibility findings against your client in favor of her lawyer true so what questions what was left out of this hearing that needed to have been asked well a couple of things were left out first of all about were teases history which the magistrate did not allow counsel he allowed counsel to make the offer proof about ortiz's problems with the state bar but forgive me for interrupting but this court said according to holmes counsel's quote failure to carry out his responsibilities in other cases and his lies to other courts and other clients bolster the conclusions they failed to act professionally incompetent so i agree with you i think judge by this point is well taken that there are many many references to competence but there's another question about his prior conduct which really goes to brass at eight sure and the time is ticking so it seems to me that going into this hearing given that focus of the remains what did you tell or did you understand this is going to be a man magistrate judge relied on for a one about the evidence indicating that this lawyer had been dishonest in this case to this client to her family telling her that another lawyer was going to be hired for  to the exclusion of the evidence going to dishonesty not to incompetence right so the district court is looking at consumption of time and many trials and  the kind of what it saw as turning the focus away from what were t said in this particular case he didn't talk about time the district court said this which this prior events of dishonesty would have unduly complicated the issues right right and complication time but it can complicate the issue if it if credibility is central and i do have an uphill battle the magistrate has made credibility finding say it and how did he say it so could you go but this goes back i think to judge by piece question what did what got left out what didn't get asked could you be specific about what evidence about veracity or credibility didn't get raised the other thing that i think counsel could have asked but was frustrated this was a contentious hearing between hideous counsel in the district court and the  think would be exactly how trying to pin down ortiz about what he said not only about the mandatory nature but about how the trial was going to shake out if she rejected and went to trial and because she can't really understand the advantages of the plea and less she understands the almost certain possibility that she's going to be convicted and i think that is what mr bigelow wasn't able to explore in any depth because the  focused on mandatory even though in his if in ours and also in the district court's order they sort of step back from mandatory and you know there are there are questions were there other witnesses the that you that should have been questioned here or is it just different questions which have been put to holmes or different questions that should be put to or tease the counsel was prepared to call the lawyer from the cochran law firm to talk about or call rose was also going to call peter arnett who was the second lawyer who was ortiz and said he was going to hire he told the grandma he was going to hire a second lawyer and this and gibbs and the secretary who right was going to explain that so how do we put all that together because if this had been if this had been submitted before a jury and these colloquy were being held outside the outside of the of the jury's earshot that would be one thing because the jury would have would not know that there were going to be th were and who may or may not be waiting out in the hall but maybe call it a subsequent hearing so you know the magistrate sort of knows all of this stuff anyway so how do we how do we how do we process all that whenever there's a court trial and prejudicial evidence is introduced and you know maybe some of it is should have been kept out of whatever the courts say the court knows how to compartmentalize and so even though the magistrate was aware of all the you know whether or not the witnesses were physically out in the hall and was aware of this you know history  he doesn't refer to it in the findings and recommendations to the district court says it's proper to exclude and so i think that the fact that there is an awareness of it doesn't mean that it was properly before the court and the court probably considered it of course thank you judge by be baked into his question the premise that the magistrate judge was aware of these  pieces of evidence as witnesses and i and i my question is whether or not you agree with that i looked in the record to figure out what was really said on record to the magistrate judge about what these witnesses would have testified to versus what we now know declaration saying yes i'd been contacted but that was the last i heard of it the whole incident with the hiring the second lawyer and what was told to the grandma so all those things what if they did not match that judge did know those things he did know because may please the court stephanie mitchell for respondent i will start with a discussion about the exclusion of the evidence and in this case i just want to point out that the offer proof wasn't to go to his credibility it wasn't truthfulness he wasn't trying to emit this evidence for truthfulness he repeatedly said that he wanted this evidence in t three clearly recognizes that that was part of the part of the argument the problem with that though is that specific it instances of extrinsic in that evidence and it specific instances of conduct  cannot be used to attack the credibility and in this case i'm looking at evidence code six zero eight i believe and did six or eight ever get argued it did not and mr bigelow never brought it up because in this circumstance and i was going through the evidence code sections it seemed to me that the way that it would proceed is that first there would have to be  a character witness that you know like the respondent would have to have called a witness to testify about mr ortiz's reputation for truthfulness or opinion about his truthfulness and then at that point mr bigelow could have then question that character witness about these specific instances of conduct but in six oh wait also i i think that it talks about cross issue really angry man was what did you tell her what do you understand about whether this was mandatory and there's this i think counsel's right there's quite a list of evidence they wanted to introduce not just about other cases but representations that they claim were misrepresentations in this case and your position is that was properly excluded and sick so it would have prevented it from coming in is that right yes yes and i think that in this case too i know that you know of course credibility in truthfulness is always relevant always but in this case the judge also found that miss holmes was not credible and evidence about mr t s truthfulness really doesn't have anything to do with his separate finding that she was not credible he's have a file for this case there's a place where  didn't have no was just notes about the advice on the plea or what is that there was a case file mr bigelow was concerned that he was not getting the entire case file because based on his review he thought that there should be things in there that were not but the entire case file was what there was was turned over and there's not notes about you know there was no testimony or nothing that said that he had documented what he had told her ok just a personal question if we were firm here is not a result you're you're comfortable with you think justice will have prevailed if she spends the rest of her life in prison it's a difficult question and one here defending that well it was finite and i understand that i understand from the last time i was here that the court is concerned about this because she committed crimes when she was eighteen she's nineteen years old she rejects a plea that would be given on the possibility of parole and now she's in there for the rest of her life to the guy who pulled the trigger she's right she's the getaway driver it's a pretty sympathetic it's a troubling case so what you mean there she is sympathetic but i think we also have to keep in mind this isn't one of those circumstances where  was dragged into one and you know one robbery and one shooting and had no idea mistress was a pattern she was all three of them right they were all all three involved in this is there any other she have any other remedy in california well i was talking to opposing counsel about that and wondering if she had made a request to commute her sentence to the governor it largely life i'm not sure what shortly before trial means more to the point what i can't tell whether she would have understood then that she would have a defense have had a defense in the form of this expert that was supposed to testify and then her lawyer later decide not not to call the expert of course but at the time she turned down the sixteen to life did she think she was going to have a different think she was going to have a defense well at the time that she turned down the offer mr t s had spoke to her about his proposed defense and his proposed defense was not just dr bernard his defense was also relying on her interview here but her interview is devastating coun it's devastating but in there she also denies that she had any prior knowledge that the that these robberies were going to get the subsequent statement in which she said i did it her interviews are devastating right yes i mean there's no doubt about that that was the evidence against her was her statement right because she was not identified until the video from the store where she right b ammunition and then she admitted to doing that as well yes so my question really is you know that didn't change right that was a constant but at the time she turned down the last offer of sixteen to life at that juncture would she still have expected she had  anticipated that the expert would have been called on her behalf to explain about that at the testimony was that yes at that point it was the belief that dr bernard would testify and then that went away late and then that went away later in the trial when they just guessed that it would open the door to her drug use one final question at least for me that there was this evidence that evidence but the flavor in the record that was was influenced or may have been influenced relief available i guess is that really true your office that's why i asked if you personally think this is the right result because you're standing here defending this and if i think if i were in your shoes and i've got a case where i thought and this is this is i feel i'm just telling you this is a real injustice i don't think she should spend the rest of her life in prison i think i would be i'd have some ability to influence the position my office would take giving her some relief i mean i don't i can remember how many years she served so far  question and i understand your concerns i do i do i'm not here to say that she is unsympathetic i agree she is but still whether i have any influence on what can happen to her case i do know that i can relay to my office the concerns but those kind of decisions are you know executive decisions not mine and they would  also is there anybody within the attorney general's office who would have could have the power to to reduce the sentence or just it does it all doesn't have to go to the governor i i honestly don't know if i'm in a position to answer that question i do think that it's difficult to do when you do have a valid judgment to somehow go around the valid judgment and change a sentence that is the only sentence that it could be i believe mr bigelow had meetings with the d a s office  while there was a petition in the california supreme court pending i'm not privy to all of those discussions but i know those dick occur so i actually think that it's really not our office that would do that you know the statement might be difficult for her her statements might have been difficult but the jury would have to decide am i'm i'm missing something i read those transcripts the statement she gave the interview that there's almost nothing left here pretty much confessed right or if i missed something truly i would i would love to know if i'm missing something i believe in my memory is that she did start off with saying that she did couple couple of points there was a trial file mr bigelow did get it but what concerned him and his concerning is that there were no notes about the offer either offer have much of a recollection about what he then told ms holmes i mean there was this whole life is life early on but there were no notes no nothing in writing that he had given to m nothing in writing that he'd given to the grandma who's obviously you know very much involved she's the one who's paying the fees and also the evidence i believe was not contradicted that triangulated that the family was reluctant to say anything about the case over the phones because they tapped the jail phones you know they're listened to and and so messages to jessica from her family came through mr ortiz who could go and talk to her confidentially so the fact that she may have relied on her family isn't determined it because her family is getting the same advice that ortiz is or isn't given to her this is a troubling case i don't want the court to decide i will tell you that there is a there's with the some of the criminal justice reform there's love in seventy point one ninety one i want to think something like one of the new about felony murder and so there is a party possibility of petitioning but she would have to show unfortunately she's got the verdict of the special circumstance verdict so whether simply because you have a governor or petition the court the court the supreme court and what about the status of of any request of the governor  so far as i know that has not been done i think she's waiting for this i am looking into the eleven seventy point one ninety five but again i don't believe that this court should and i don't believe it will back away from its determination to make a decision on this record because the chance that she's going to get any relief  that there was a special circumstance finding we'd have to overcome that it's for those people serving time for felony murder who were not major participants in tyson and who did not have the intent to kill and with the special circumstance the finding has already been made against her what was the nature of the finding that's so under tight tyson versus arizona the another person who is not the asking in this trial the jury returned a special circumstance funny what was that it was that she and i didn't bring the jury instructions with me but is that she act they were instructed