snitches one of whom didn't even appear for trial the prosecution was able to prop up their credibility and get a premeditation verdict and therefore a death penalty by violating versus california by commenting directly on mr holder his failure to take the stand and contradict the testimony of the jailhouse snitches and did at one point in the argument he pointed at mr that the prosecution also violated brady versus maryland by failing to disclose the inducements that were offered to these snitches to testify and the prosecutor affirmative there was a little different for each of them cues which wasn't his real name but that's the name that he used the trial clearly had an understanding that even though he was facing four felony charges in two different counties he was not going to pr he was going to walk out the front door and in fact he did judge patel said the fact that he got a favorable treatment after he testified was not evidence testimony or something else we are promising you that you will walk on for felonies tell us exactly thrash really what the record says on the  at trial but that wasn't the only way that the prosecution was able to get a premeditation verdict because mr hold these trial counsel  failed in a couple of significant respects i'm you know to me the informant thing is a very important part of the case and i want to make sure i absolutely understand precisely what it was it is that you say is the brady violation so that's why i want to know you say p fuses on deposition testimony of leni on deposition both both of which were videotaped she didn't bother to look at and didn't hear of their testimony or the testimony of any of the prosecution agents who dealt with these guys she granted summary judgment without drawing all the reasonable inferences including the fact that they got favorable treatment in favor of  offered made to understand that he would not have to go to prison for that lee would get out of san quentin they fail to disclose the letter from the deputy district attorney to the department of correction i'm very revealing didn't melling go over to san francisco to see you facing the charges that there was no mention of the san francisco charges at all that he was facing two felonies in san francisco there was no mention of the fact that when he violated probation he came back and instead of being locked up he walked out the front door and this was all part of the pattern of it was basically a wink no promise it was there enough there for the for the jury to draw based on what was before them there certainly would have been enough for the jury to infer that they were offered significant consideration had the brady material been disclosed had true dell used the information in his files about these informants that he didn't use he both didn't investigate it didn't talk to him and didn't use the information that he did  that's wrong because on summary judgment she has to draw all the inferences in our favor not in favor of the state and she decides that the jury could not possibly if they had been given this additional information have drawn the inference that these were not disinterested observers good citizens who just wanted to come forward these were people who had an interest because the prosecution was had all of these interactions with the prosecution and had violated prior probation and had been released that it all happened before he testified it's true that right after he testified he's taken back to san francisco they revised the plea and just kind of happens and that's right did he use himself give a reason for testifying is he the one who said something to the equivalent of i just wanted to unburden myself an awful thing i think that was lea mean given what the prosecution had done i suggest that's fundamentally dishonest the other thing the true delfi didn't do in the guilt phase that affects the credibility of the informant and the jury's willingness to credit the snitches testimony which he conceded in his closing argument that there was sufficient evidence of premeditation to support a first degree verdict well the only other than supreme right well the circumstances of the crime certainly showed that he intended to kidnap the girl but there's a big difference between premeditating the killing as opposed to planning out of a kid that's right for sure then today i'll concede that there's sufficient evidence of premeditation which the prosecution couldn't even charge mr hole view with this crime until they had the statements from the two was councils on the parents to deal with the snitches testimony lee in particular that led the trial judge to do an amazing thing something i hadn't heard i think any other case she interrupted the trial right in the middle of the guilt phase and trial prejudicial under strickland there was no harm in excluding hovey from this proceeding that's the wrong standard that would permit excluding the defendant from an entire trial unless he could prove strickland prejudice because of that effective assistance of counsel and when you think about it strickland requires deference to find that true dale during the course of the trial did a number of things that were deficient unprofessional in representing hoping she goes on to find that none of those was prejudicial but he certainly was prejudiced in a real sent by to dell's conduct of the defense and that ought to be enough and the whole the other beach anough to show that to demonstrate that the presence or sufficient prejudice there for holding that the right to be present was violated and was president that court said that's not structural error but that's where the defendant is represented by conflict free counsel at the proceeding that the defendant doesn't get would tend to is not true here and then tries to tell goes on and hold i frankly think that was a lot of judges ought to be protecting people's rights to a great counsel specially if that's a family factor problem is that you think you think at any time and every time that happens the defendant must go in chambers prepared to answer the court's questions on every issue but i just want to address one other principle issue which is the penalty phase issue of you know effective assistance dealing with the presentation of the psychiatric mitigation case judge patel found that through dell had done a shoddy earth binding her were shoddy job and was deficient in several respects in presenting against the totality of the available mitigation evidence no other words look at the medication evidence that could have been presented just to tell cause didn't do that because she didn't have the with the prosecutor or with the psychiatry as not having certain information and therefore being cross examined in a way that undermined his testimony so it's not really like the other cases it seems to me  walked from san francisco to s f o broken into a car and had been taken to jail and then to us but he knew that much he didn't know the doctors had had suspected schizophrenia and had prescribed serious anti psychotic medication so that when testifies he's cross examined has anyone has any doctor ever treated him for mental illness i don't know of any evidence of that has you ever been prescribed medica times he's taken to the hospital while he's in jail before trial and the doctor has a trem my well that's the future was cut off because saturn was asked the wind up question after all of the history of all the interviews and  in to do was not testify particularly about mental illness but rather to present in the guise of those are two dollars words in this deposition in the guise of psychiatric testimony to get version of the offense what happened before the jury in a way that wouldn't subject over to cross examine that sort of misuse of psychiatric testimony that was one of the goals wasn't but there was no prosecution psychiatrist and then he was foreclosed by the judges trial judges ruling from showing that he was mentally ill at the time of sentencing the time the jury was deciding whether he live or die that was excluded that under payton and belmont his decision to this court was there by itself because the jury was you know the instructions to the jury didn't say what these practices mitigating which ones aggravating judge patel said well a jury could decide that mental illness is aggravating which would make some sense to some jurors because he's irrational he's dangerous we've got to put an end to this and hold his mental illness against him and in fact the prosecutor sure you have anything other than what is already covered in the factors well there were two dell did call two witnesses department of corrections and jail witnesses to testify that hovey was examination about some heavyweight tones and psychiatric terms that the sat in hadn't seen and hadn't relied on and then ask your own reading have you found that psychiatric diagnoses are right more than a third of the not relied on and he sits on his hands and then the prosecutor gets up an argument and says these kinds of diagnoses are right no more than one out of three not telling sat in the most basic information about the crime not giving him the records not telling him things that he needed and over to protect himself from cross examination which allowed the prosecutor to ridicule him in argument and the trial judge to discount his testimony to zero had the right kind of job and i suggest you could look at  in this case they would insist on first degree murder he makes that determination without having investigated as charged often without having adequately investigated whether it was possible to impeach the two snitch whole bunch of these cases that tactical choice that he made is not entitled to deference what he so what i'll do i'll try to fool everybody and get a first degree felony murder verdict by letting the invalid special circumstance lewd and lascivious act on it child stay in the case it was clearly invalid and prosecutor conceded there was immediately when it was raised  he'll leave that in the case and he won't challenge the snitches testimony that the girl was molested and he won't object to the district attorney arguing station and so on and then he'll use that to say well now you find felony murder that he committed the killing in the course of a lewd and lascivious act on trial but there was nothing to prevent the church from doing exactly what they did well they can go ahead and prove that without proving in addition that he molested her so there was a good chance properly briefed and argue that which trivial course never pursued at all that their molestation testimony could have been redacted would have been real easy with me because he's not testifying like they just read his testimony from thanks very much the judgment that's going to be reversed we'll hear from you again when we hear from the other side earlier please do so well all right i'll take that everything i could securely concerned about the gryphon air everybody seems to concede maybe you don't that there was an error in other words the prosecutor commented on m constitutional right to remain silent you can see there was griffin error i don't your honor we argue that it was an earlier we argued that the prosecutor was directing his comments to the stipulation that was presented to the jury of the beginning of the trial where they indicating that the defendant so what i see in my mind is a prosecutor saying holding told lee and hughes that he used the knife and then the prosecutor says he never told you anything different now i'm having a hard time and you have an opportunity to tell me i'm wrong seeing how that's a comment on a stipulation if the context of the stipulation were the jury is dealing with somebody who has admitted to abducting an eight year old child in the street and killing her the only question was whether premeditation deliberation in connection with the abduction of a child by an adult can see to that now what is it that the jury has to learn from the evidence that was presented and from the print presentation of concessions made by the defendant the issue still premeditation deliberation what was there further to be determined by the jury now this is a passing comment with respect to the presentation of this concession by the  that the district judge in reviewing this noted that it is a passing remark that the argument is far more substantial than that that the evidence of his abducting killing and killing this child with an eight year old child friendly girl from a street and killed her and flung her body from his car and where she died and she died it days later the inference of motive that any reasonable juror might likely find in in this is that is a most patients something of normal the purpose for by which for which he killed her the reason that i the district court found it to be harmless in light of the overwhelming evidence of premeditation deliberation that enables the jury to come back with a first degree murder conviction so the issue is was there governor we don't believe there was result by the nature of circumstances of the crime itself whether it was done by a knife or whether it was done by some object and i think does not make a difference to a reasonable jury unlike the fact that their first they were to jail house informants who testified that he intended he think you know i have is no way i think was griffin error because he says here he's never told you why he did these things you're talking about premeditation and deliberation and then you admit and so does everybody and it's as clear as the nose on your face that the knife suggests premeditation and deliberation going into this with a knife he says you know mr hope mr harvey told lee and he told hughes that he used the knife he's never told you anything different there's nothing different you heard about a shock absorber there's nothing there for you heard about shock absorber what about a shock absorber you know that's a red herring herring that's something that just the smoke that's dragged across in front of you like a screen could have been a shock absorber he knows what it was and if it was a shock absorber don't you think he would have seen it you would have seen it here it was a shock absorber so what so what the credibility of these witnesses and this is going to premeditation and deliberation so it seems to me he's kaiserin up these witnesses and he's saying his silence proves the credibility of these two jailhouse snitches on th crazy i understand the district court in issuing her order look at this from from the perspective of your disgust i went back the california supreme court was very swayed by the knives  then he's telling them they're credible because this guy didn't take the stand and then i went they said well i think there was more there too i think the first got it let me ask you something else here you say that somehow this is all mitigated by the court instructing the jury that statements of attorneys are not evidence i don't see how that works because the commenting on a person's silence that's always a statement i've never seen anybody before so that you can you can get around with an air by telling them the jury that prosecutors information is not of this of course it's not evidence and that's what griffin is all about your honor you're right but the point is the gryphon error is that there was one has to be measured and looked at and engaged in the context in which it was  instance we don't have it we do have many findings of fact by that i just i think it's not just when it is not that high but if you're hearing on this and let's go to my next question if if we assume for the sake of discussion at this point that it is griffin air under no circumstance could any jury have returned a verdict of second degree murder in this case this case involves the admitted killing of a child after abducting her and killing her according to the defense in a panic so she doesn't identify murder first degree felony murder used as a theory in this case it was not of it was not a felony murder charge in this case it does appear in one nine hundred seventy eight when the charge was filed charges were filed in this case four by the california supreme court but in one nine hundred seventy eight when this was charged there was no law at least it was unclear law in california about whether you could charge a little to be used acted in connection with a attorney he wanted a felony murder charge because the felony murder charge allowed the jury to avoid having to reach the delivered premeditation element and then wind up with a special circumstance requiring a penalty and that the penalty the jury would hear about the second little girl that's pulled from street and molest and so the defense was essentially get a first degree murder because no reasonable jury will come back with less than a first degree murder to get a first degree case to end right there and then without having to go to a penalty phase and so for the first time in my life i've never heard of this a prosecutor objected to defend and smoking to have the what the prosecutor knew exactly what it was that the defense attorney was doing he knew he was giving the jury an opportunity to return a first degree murder verdict which it will do without having to also find premeditation deliberation and it's a special circumstance that would murder verdict for the murder verdict but don't go to the felony murder don't do felony because that will require a special circumstance and a further proceeding what he wanted was a jury to just come back with first degree murder and mental hospital for a year he testified that he had hopes of getting protection from the bad guy to testify ok that's what he testified to that's what the jury heard as to use the use testified that he had a criminal record he had pending burglary charges and that he quote that hoax and of not going to prison on those charges after testify i'm not quite sure what the difference between hopes that he testifies to about not  to trial and promises that he said he didn't get in fact the trial the district court making her findings of fact found that there was no promises as to the alameda charges and then each promises were made most implicit as to  but the way i look at oscar the way i look at this record is even if you had hauled in everybody who knew anything about what was going on district attorney local district attorney their testimony would have been we have been promised these people anything nobody post we've given them an opportunity to help themselves exactly and no jury no reasonable jury would expect or understand anything less again the district court made findings that there were no promises at least as to al qaeda and no implied no expressed promises a you say he was coming forward i don't remember as i recall he said he stated that no express promises were made to him as i recall didn't least say that somehow there's a moral matter or i that is the subject when you also get the witness to testify that he has hopes of not going to prison on those charges after testifying that there are pending criminal charges that he's a life long criminal or a long criminal closing argument and in the context it just did not have a substantial and injurious effect on the verdict in this case in light of the overall circumstances overall evidence now that the whole i attorney's past narcotics and alcohol abuse than the six have been a right to confrontation and the fifth amendment due process rights due process does not assure the privilege your presence when presence would be useless by creation of violation of rule forty three question you would be where honing in on a standard here which is whether he would have anything useful to contribute through his presence well and as to that question why isn't this quite different because there is no structural problem a structural issue when this hearing evolved into a potential conflict but that if the car to devolve into a conflict that the conflict involved the hearing that the trial from beginning to end the structural problem methodology because you would say this is trial error no matter what this is a trial lawyer and the reason the stroller is because it's the only structural error if it's a defect that that compromise the proceedings of the trial itself  lawyer than hovey retained his own lawyer the attorney was a member of the employee of the alameda county public defender's office and as i say i don't know of any relationship or any trial when you have an ineffective assistance of counsel claim that the attorney may do all sorts of effective efficient things but it may have no effect whatever on the result critical stage or it was not a structural error because of the nature of the error because of the nature of the presence here that that was if we don't have a conflict which contaminates and you know and you don't think happened one thing that was obvious to everybody that is that the and let me back off for a moment before act we will examine the district court made numerous findings of fact numerous findings of fact about the effect and credibility of any difference or any changes that would have occurred that had the attorney defense attorney prepared dr even more any differently or any better and the judge made all i think numerous ones and in fact one of the most best summarized statements of all of the factual findings made by the district court i had to dealt performed adequately dr satins credibility would have improved only marginally and asserted that the evidence that should l fail to present would have undermined satins diagnosis what they're talking about is the trophy hospital records and the were made by doctors before the murder and russian and after the murder of you to death with that is what as a prosecutor i would i would of thank god if that if those medical said that there was no at record of any medication which  well that may have not been true but it would have been better for the prosecutor to cross examine the doctor something about the medication that was prescribed not for schizophrenia for diagnoses they were inconsistent with  schizophrenia he was the doctors in impartial doctors that were testifying for anybody before the murder after the murder all every single one of sat in various records with assisted the psychiatric presentation and prevented credibility impairing cross examination for not having shown her doctors that this testimony would have changed much less benefited had he known all the facts for not having sat next plan how his know what that's change or diagnosis not make a difference what would you do how would you better testify there was no action there was no there was no evidence presented that it would have improved his ability to respond or that he would have been able to give the jury any better response he gave or was in the present tense a lot of the medications that there was an objection i don't i know but the during the jury was never instructed or never in there and it was never any argument in the penalty phase by the answer i believe it was it's not different basically from carrie and they're starting all anywhere that suggests otherwise and i believe the entire battle mitigation case concerned is personality which is murdered the child it was about what he was what he what he was and what he hears there was no implicit suggestion that it could that the jury could we disregard who he is when it reached its verdict nor were there any suggestion or a stick or what this troubled person he was then and there it was because of the nature of the questioning as to what was the relevance of the question what was the relevance of the mental state at the time of trial as opposed to the middle stated time that the expert was  got his opinion as to a little i think that's what it was in fact if it wasn't it certainly wasn't so such an error as to in any way affect any reasonable probability a couple of things on the factor k j are never water that's the same instruction that was repudiated by the california supreme court and easily and then replaced by the california legislature the same instruction that was given in peyton something to contribute to society  excluded our so i q a trick expert who would have made it real clear that hovind was mean seriously mentally ill before the crime at the time of the crime and for years thereafter and  but also the fact that one is mentally impaired is a reason why death might not be appropriate at least one juror might think that the way the court the same reasoning that applies to mental retardation a mentally ill person isn't as fully culpable as somebody who's perfectly fine judge paez asked about whether there was any conflict issue with at the hearing and there was a j was not by itself the error was not prejudicial was because he said there was sufficient evidence of premeditation other than what came from the two wasn't the evidence that he picked up the girl and then he blindfolded her and then he drove her away and so on was certainly evidence that premeditated the kidnapping but not the killing and i would direct the court to well judge patel with that crime and there was a question about the instructions with regard to lift and of course that was the standard instruction that arguments of counsel are not evidence there was no instruction that the jury should view with caution the testimony of the jailhouse snitches was the one asked for that was not that wasn't it we raised that as an issue in the california supreme court and they decided main cases on the right of president we cite them judge patel side of them and they all predate one nine hundred eighty eight which is the cutoff date in this case for t v purposes the point yes that's just the remedy that's not the right well you know you get into this question the right if you express at a level of generality that is simply the right to a lawyer or so specifically mr gutierrez had a right to be