Legal Case Summary

Good afternoon, may it please the court to Stuart Lev on behalf of Pallant James Lambert. As I before I begin as I was preparing for the number of issues we have before the court today, it struck me that perhaps it would be more helpful to the court if we broke up the argument and argued the guilt phase issues first than had the commonwealth respond and then the penalty phase. If that's more helpful to the court, I'd be happy to proceed that way if the court would rather go through the whole proceeding we can do it that way. Would you prefer if council for the affily agrees that's fine with me. That's fine with us. All right. Okay, in that case I would like to take about 15 minutes of my time to talk about the guilt phase issues and save two minutes of that time for a rebuttal of the guilt phase issues. All right. Will you be reserving rebuttal time on the penalty phase as well? Yes, I'll reserve a minute for the rebuttal just in case. I suspect we'll be very hot and exhausted by the time we get to that level of the argument. James Lambert was convicted of first-degree murder and sentenced to die on the basis of some of the weakest evidence imaginable in a capital trial. The only evidence connecting him to this crime was the testimony of an admitted accomplice who received extraordinary benefits and privileges in exchange for his testimony against Mr. Lambert. The testimony of an eyewitness who had told the police at the time of the crime that she did not see them perpetrators, that she was not able to provide a description, that she would not be able to make an identification. But suddenly at trial, when called to testify by the co-defendant, not by the commonwealth, 18 months after the crime, she for the first time made an identification, it's utterly lacking in reliability. The issues, the guilt phase issues, other than the bats and claim that I'm not sure we'll get to today. The other guilt phase issues go directly to these two key pieces of evidence and undermine these two key pieces of evidence. And also demonstrate how the trial courts rulings on these issues were rulings made in order to protect the fair trial rights of the co-defendant, Bruce Reece, at the expense of Mr. Lambert. And for the number of reasons expressed in the brief that I hope we get to talk about today, I think Mr

. Lambert is entitled to relief from this trial. I do want to make sure, because there are so many issues, that what I talk about is what you want to hear. And so I know this court will direct me to the areas that you're most concerned about during the course of the argument. I was going to start with the Brady claim. The first part of the Brady claim deals with a police report that was not disclosed to trial. The police report indicates that the accomplice witness, a man by the name of Bernard Jackson, had named Leonard Woodlock as his co-defendant in this case. And that is a result of that information the police had taken, Mr. Woodlock's photo, and put in a photo array and taken it out to the bartenders at the lounge where the crime occurred and show that photo array to them, but they were not able to make an identification. You will agree, will you not? That's the federal defender did not cover itself in glory as to how it came into this material and how it came to be disclosed. I would agree that it was problematic. We thought we were acting properly at the time. We were told later by Judge Kio and stay court that we were not. We immediately followed Judge Kio's orders and stopped doing what we were doing. But I think that the key element here is that we shouldn't have to engage in tactics to have this evidence disclosed. That the problem is, is this type of police report naming another person as the co-defendant should have been disclosed from the get go. We do think that this police identity sheet would be, as material, as you say, it is here if the evidence had been stronger in this case. It certainly, if there was more evidence, it would be less materiality. I think materiality is something that we balance against what the impact of the non-disclosed evidence might be against the evidence in the case. But in this case, given the overall weakness of the Commonwealth case, and remember, the Commonwealth's only evidence was Bernard Jackson

. He was testifying for an agreed deal that was told to the jury and perhaps other benefits that we allege. He had given a number of statements and made a number of inconsistent statements and admitted to a number of lives that he had told the police. He was not a stand-up witness to begin with. Yet there was one area of his testimony that the Commonwealth relied on over and over again to try to make incredible to the jury. That was his supposed consistency in naming Mr. Lambert as his co-defendant in this case. Lambert Enries. He was a system of both. Lambert Enries. He presented that through direct testimony. He argued that to the jury the one thing you can depend on Bernard Jackson that he was consistent is that he named Lambert Enries as the people and he didn't. This police report tells us that he named Leonard Woodlock. Competent defense counsel. And remember, as this court has said in Simmons and its other Brady counsel, other Brady cases, we look at the non-disclosed evidence through the eyes of competent defense counsel and how competent defense counsel could have used this evidence to attack the credibility, create other inferences for the jury. And competent defense counsel could have used this evidence in any number of ways. Its evidence perhaps that Leonard Woodlock was the person who committed this crime with Mr. Jackson, one of the people committed to crime. Its evidence that Mr. Jackson is just looking for a scapegoat who would stick

. Somebody remember Jackson was identified the only identification by any of the people in the bar to the police during their investigation. The only identification was one bartender who identified Jackson as one of the robbers in the bar, the one who stood by the front of the door during the robbery. Jackson is telling the story that he's not even in the bar that he's outside in the car during the course of the robbery. And so Jackson is clearly mitigating his behavior, trying to minimize his responsibility and his behavior in this case. And he's looking for a scapegoat. And the fact that he... I'm sorry, where in the record does one of the barmaids identify Jackson as the man at the door? I believe that was the testimony of Sarah Clark. Yeah, and Marie also says it looks something like... there's a suggestion that she was identifying. That's right. Marie Green was the other bartender who where there were two bars one at the front, one at the back, the shooting occurred at the back and Jackson had stood at the front by the front door at the bar. They identify Jackson by name or... My question is that he was five-six and he had dark glasses and the hat and

... They identified Jackson from a photo array shown to them by the police during the police investigation. You suggest in your reply, Marie, and... Let me just ask you if you mentioned suggesting the prosecutor knew about this identification of woodlock and knew there for that Jackson was testifying falsely when he said it was only recent Lambert. Is that correct? Did the prosecutor know about this and not the prosecutor? I can't say for sure. I think certainly the prosecutor had constructive knowledge that this is a police report that's in the police homicide file and certainly prosecutor under Kyle's, under the Supreme Court law, is duty bound to know what's in the police homicide and files and investigations. But I don't think there's anything on the record that shows that he had one way or the other, whether he had actual knowledge of this. What do you say... You would agree that in order to grant relief here, we would have to find that the state court's determination that this was not material was an unreasonable application of Brady. Yes, I would agree. What they said was that this was an extensive investigation and in the context of that extensive investigation and all the reports and statements, etc. This single mention of woodlock, if anything, suggests that woodlock was not a serious subject. The police did not regard woodlock as a serious subject and they say, yes, he could have been.

.. This material could have been used to cross examine Jackson, but there was just so much material that he could be examined with and was cross examined with that this is not something that would cause anyone to lose confidence in the verdict. Well, I think it's unreasonable. I think that's unreasonable, Judge Stapleton, for two reasons, particularly first, because I think part of the defense theory, Mr. Lambert's theory, was that Jackson was looking for a scapegoat, that it was Jackson and Reese who did this crime together and that Lambert who had just met Jackson and Reese earlier that day had nothing to do with the crime. Certainly, this mention, which the police took seriously enough to put into a photo array and take it out to the bartenders to show them, was a key piece of evidence that the defense didn't otherwise had to support the idea that it was a scapegoat, that Lambert was being scapegoated. And the Pennsylvania Supreme Court didn't really deal with that. They only really dealt with the materiality as it affected the possibility that woodlock was actually the robber. And it really deal with the scapegoat, but I think even more persuasively and more importantly, and the Pennsylvania Supreme Court doesn't address or deal with this at all, is the prosecutor's evidence and argument about the consistency of Jackson's identification. The consistency of Jackson's identification was the cornerstone of the prosecutor's defense of Jackson's credibility. He repeated it several times in closing argument and he brought it out during the course of his examination of Mr. Jackson. That was the cornerstone of his otherwise very damaged witness. He was trying to save that consistency of who he identified as his co-purpotrators. Now, this leads neatly into, we'll move you along a little, into your argument about the 12 or 13 other robbery, bar robbery, is committed by Reese and Jackson without, you say, Lambert and your objection to the fact you weren't allowed to go into them. The Supreme Court described those robberies as a hodgepodge. What did I say? It said a hodgepodge of conflicting facts that some were committed by Jackson alone, some by Reese alone, some by Jackson and Reese where Jackson was just going to drive the car, others by Jackson and Reese with a third party. My question to you is how many of these 12 or 13 prior bar robberies were committed by Jackson and Reese together? I think it was about eight. I'm not sure exactly, but it was about seven or eight of them were committed by Jackson and Reese together

. But here's one of the problems, Judge Barry, I think, in the state courts determination of that. From the very beginning, when Defense Council first raised this issue at trial and wanted to use it and the trial judge says, I don't see that they're similar enough to use against Reese. Defense Council asked for a hearing so that they could go through and present evidence and look at these prior robberies. Look at the facts of these prior robberies and demonstrate that there was a sufficient degree of similarity for at least many of them that it ought to be admissible. And the judge denied a hearing. And the hearing issues were raised again on direct appeal. They were raised in PCRA litigation, on direct appeal. They challenged the court's failure to hold the hearing and PCRA litigation. Both sides, we again challenged the court's failure to hold the hearing and we've asked for a hearing in federal court as well if the record doesn't support a new trial, which I believe that even on this record it does. At the very least, he's never had a hearing. So the Pennsylvania Supreme Court is basing that decision without ever having a fact-finding opportunity where you could take evidence and conduct discovery and determine whether or not there were a number of these robberies that had a sufficient degree of similarity. Assuming there was a fair number that were similar and they certainly, if the crimes were similar and Jackson and Reese did them together, you might draw the inference that they were the ones that were involved here. But help me, how do you draw an inference? If Reese and Jackson did a whole series, you can say, well, they probably did this one. But how is it logic to say that it's evidence that Lambert was not there? Because the fact that these two did a series of crimes, why is it relevant to show that your client was not there? Because there were two people in the robbery. There were two people inside the bar committing the robbery. The only person who suggested that there were three people in this crime was Jackson, who was minimizing his own conduct perhaps. All the witnesses in the bar, they saw two people. They saw one person stand by the front door and that was the person who was identified by the barmaids as Jackson. And they saw another person go to the back who was ultimately the shooter in this case

. And that person, if described it all, by Janet Ryan, the eyewitness that we'll talk about in a little bit, was described to somebody 5.5 or 5.6. Somebody consistent with Reese's height. So if you look at this evidence, this similar axe evidence is pattern and practice of Jackson and Reese committing robberies in light of the other evidence of who was in the bar, it's completely consistent with the defense. That Lambert wasn't there. And that this robbery was committed by that. I mean, you would argue as opposed to evidence you wasn't there. The inference you would argue was inescapable that if there were 13 or 12 prior bar robberies with just the two of them without Lambert, but he wasn't there this time. Absolutely. And we bear in mind in arguing this that a trial defendants burden is only to create a reasonable doubt. And certainly the inference compared plus the evidence that already exist on the record creates some substantial doubt about whether Lambert was here, was in the bar at the time of this crime or not. And that's what the defense needed to present. The defense doesn't have to prove it wasn't Lambert. They just have a trial to try to raise a reasonable doubt before the jury. Well, the doubt seems to me, rises or falls based upon the jury's appraisal of Ryan's and Jackson's credibility. And, I mean, and well, are we supposed to second guess that? Well, I think we have to look at two things. I think we have to look at the jury have the information that they should have had to be able to make a fair assessment of Jackson's credibility. And so that information we allege is that that police report naming Leonard Woodlock

. We think the misleading nature of the of what was told to the jury would be Jackson's deal and Jackson benefit versus what the prosecution actually did in that case. Takes away from the jury information that that they should have had or the jury was misled. And as to Ryan, the difficult question is not so much her credibility because but her reliability. And and and if we get to the identification issue, the the US Supreme Court has recognized that in some limited circumstances, identification testimony is so unreliable that even cross examination is not effective to be able to fairly present it to the jury. The the problem judge Hardiman that I've always seen with with trying identification cases is the witnesses isn't lying. Cross examination is a great tool to to help uncover questions about the credibility of the witness and whether they're being truthful. But the problem with identification witnesses is is most often they believe that what they're testifying is true. The problem is what science told me and what the US Supreme Court recognized, you know, many years ago in in the series of identifications is what they believe is not always reliable and not always something that that we want juries to to to rely on to be able to judge because juries really have a difficult time judging the reliability of identification testimony in extreme circumstance. All right, but accepting all that, I mean, the Supreme Court of Pennsylvania on direct appeal held it was not an abusive discretion to deny the severance motion and it was not error to allow Ryan to be called as a witness by Mr. Cannon who was representing Reese. Where is the Supreme Court of the United States decision telling us that either of those two decisions by the Pennsylvania Supreme Court was contrary to clearly established Supreme Court precedent? Let's start with the identification testimony from his right. But the Pennsylvania Supreme Court said and it's quoted in the brief, I'll paraphrase it now, they said, in court identification by a witness who was unable to previously target a defendant is clearly admissible. That was their holding. That holding is in conflict and certainly an unreasonable application of the Pennsylvania, the US Supreme Court holdings that have set forth a procedure for determining the reliability and admissibility of identification testimony. What case? Manson versus Braithway, Neil versus Bigger, Stovol versus Denno. Manson and Neil, they're factually opposite to the facts of this case. I don't think there's a case, I want to be clear. I don't think they're a case where the admissibility came from a co-defected rather. But I don't think that's not important in judging the reliability and admissibility

. I mean, I don't doubt that Ryan's testimony is admissible for race. It benefits race and race needs it to protect his fair right. But the question isn't, was it admissible for race? The question is, is it admissible to be used against Lambert? And Manson and Biggers and the whole trilogy of cases tell us that you have to subject identification testimony when it's the product of a suggestive confrontation with some care and that there's a series of factors to determine reliability. Manson says reliability is the winch pin of admissibility. And there's not a single factor in this case that gives you any hope that there's any reliability to Janet Ryan's identification. And we might interrupt you because you're going to run out of time. I really need help with this, the cases that you're referring to because we read them somewhat differently. I understand your argument that if you apply the Biggers factors, you can't justify this on the basis that its reliability is independently established. But my understanding of the Supreme Court cases is that you first have to look whether something, an identification circumstances, were unnecessarily suggestive. That's before you ever get to, can you independently justify them by independent evidence of reliability? So the first step before you get anywhere is one, was it suggestive? And two, is there any justification, fair justification for not having taken a less suggestive means? In Stovall, that was the whole case. That was the whole case. They never got to Biggers, where Biggers hadn't been decided. But they said they took this defendant to the hospital where the victim was critically injured and they did a show up with just one man there. And the court said, well, that was necessary under the circumstances. She was the only one that could absolve him et cetera, et cetera. I'm not sure how your rule would work here when we're talking about the necessity of a public, well, first of all, the only thing suggestive here with the in court identification was that he was sitting at council table with four other men, five men sitting at council table. Now, we know that the Supreme Court is going to say a public trial is constitutional, they required. We know that Supreme Court is going to say confrontation of the defendant of all the witnesses by the defendant is constitutionally necessary. And what oh, right to council

. Now, isn't it just how do you have a public trial? Guarantee that the defendant has a constant contact with his attorney and that he has is able to confront all confront, all of the witnesses. If you say that this identification under these circumstances is unconstitutionally inadmissible. I would answer you Judge Stapleton with these thoughts. First, I read Manson and Bigger's a little more broadly than that when Manson says reliability is the windshpin. I think it's any circumstances leading up to the ultimate identification, create suggestivity that then reliability becomes the critical factor. But let's assume that we read it the way you do. And I'd say that first let's talk about suggestiveness. I don't see there's there's little doubt that a trial setting is a suggestive setting. The defendants are sitting at the courtroom with counsel. It's pretty easy to distinguish counsel from defendants. They're sitting there at the table. The witness comes in to the courtroom and she knows that there's a trial going on and that these men are accused of doing what she was a part of, what she was a victim of. And so her attention, the suggestivity is there both in the knowledge that she has going into it and in the look itself. There's also suggestivity that's a little unclear but the prosecutor said at one point after Ms. Ryan had finished her testimony that she had been shown photos and he wasn't sure who she was shown photos of but she knew she had been shown photos before and if there had been a hearing, if the judge had given the hearing, who's photos were shown and what was going on. We might have been able to figure that out but again when defense counsel said a little belatedly I should have asked for a hearing, the judge says that's okay. I wouldn't have allowed that anyway. So he did ask for the prosecutor asked for a pretrial hearing and the judge turned him down. Well, pretrial, there was never any question. I don't know. A hearing when she said before she testified and the judge turned him down. I've never heard of a procedure like this. You've discharged the witness. That's right. That's right. So it is suggestive and it is unreliable and so then the only question then is unnecessarily and I would suggest it. Well, if it's suggestive, it just because it is suggestive does not make it as a matter of law unreliable. No. It has to be impermissively suggestive, doesn't it? Well, I think if it's not impermissively suggestive, isn't reliability for the jury? No, that's the whole problem with eyewitness identification at some level that there has to be some minimal level of reliability established through the biggest factors before we let the jury hear it because there's such a potential such a danger with misidentification. But the case trial where there was a pretrial identification and the tank did it come into the trial. This the whole identification here occurred at trial. In front of the jury? In front of the jury. That's correct. But here's what I think is unnecessarily. What makes it impermissible or unnecessary? Certainly the trial is permissible and the right of the public and the participation of counsel is all permissible. But trial should not be permissible as an identification setting. If you're going to use a witness as an identification witness, there ought to be some measure of that witness's ability to make an identification before that witness comes into the courtroom into that very suggestive setting. In this case

. I don't know. A hearing when she said before she testified and the judge turned him down. I've never heard of a procedure like this. You've discharged the witness. That's right. That's right. So it is suggestive and it is unreliable and so then the only question then is unnecessarily and I would suggest it. Well, if it's suggestive, it just because it is suggestive does not make it as a matter of law unreliable. No. It has to be impermissively suggestive, doesn't it? Well, I think if it's not impermissively suggestive, isn't reliability for the jury? No, that's the whole problem with eyewitness identification at some level that there has to be some minimal level of reliability established through the biggest factors before we let the jury hear it because there's such a potential such a danger with misidentification. But the case trial where there was a pretrial identification and the tank did it come into the trial. This the whole identification here occurred at trial. In front of the jury? In front of the jury. That's correct. But here's what I think is unnecessarily. What makes it impermissible or unnecessary? Certainly the trial is permissible and the right of the public and the participation of counsel is all permissible. But trial should not be permissible as an identification setting. If you're going to use a witness as an identification witness, there ought to be some measure of that witness's ability to make an identification before that witness comes into the courtroom into that very suggestive setting. In this case. You think you predict that the Supreme Court of the United States is going to bar all courtroom identification? No. And I'm not saying that. I'm saying that when you have a courtroom identification that's objected to that's in a situation where you can ask for a hearing where there's evidence of reliability court room identifications are fine. But where there's no evidence of reliability, we can't depend on juries just to be able to take it. An identification made 18 months after the crime and understand the questions about reliability because we know from social science, we know from DNA exonerations, we know from the case law that juries are impacted by the witness who sits up there and says that's the man I'm sure of it. What's the difference between reliability and the weight? That should be accorded an identification. I think reliability is a threshold standard of admissibility and then weight is a question for the jury. Now, I understand, it weights a question for the jury, but don't you think there is quite a bit of interaction between them? There may be, but if they were identical, then the Supreme Court never would have said some identification shouldn't come in. They would have just said the reliability of an identification is the subject for the jury. The Supreme Court hasn't said that. The Supreme Court says there are some identifications in some circumstances that don't meet a threshold standard of reliability that we allow it to go to the jury. And I suggest, although these are are somewhat unique, not unique, these are not the ordinary type of identification problems that we run into, that the whole circumstances of this are so unreliable that it should not have been admitted to the jury, that it's too unreliable for the jury to credit and to reach a verdict that we can depend on. My time is up. So if you want a few more minutes, feel free. I mean, we're not, this is an important case. I would like to do a couple of things with just a couple more minutes. One is to emphasize, I think that there are a number of issues here that if you don't believe we've established that relief should be granted in the form of a new trial, that at least an evidentiary hearing is called for. I think the Brady claims call for an evidentiary hearing if it's not sufficient on its face to grant a new trial. The question of similarity of the prior of the prior acts call for a hearing and hearings have been requested

. You think you predict that the Supreme Court of the United States is going to bar all courtroom identification? No. And I'm not saying that. I'm saying that when you have a courtroom identification that's objected to that's in a situation where you can ask for a hearing where there's evidence of reliability court room identifications are fine. But where there's no evidence of reliability, we can't depend on juries just to be able to take it. An identification made 18 months after the crime and understand the questions about reliability because we know from social science, we know from DNA exonerations, we know from the case law that juries are impacted by the witness who sits up there and says that's the man I'm sure of it. What's the difference between reliability and the weight? That should be accorded an identification. I think reliability is a threshold standard of admissibility and then weight is a question for the jury. Now, I understand, it weights a question for the jury, but don't you think there is quite a bit of interaction between them? There may be, but if they were identical, then the Supreme Court never would have said some identification shouldn't come in. They would have just said the reliability of an identification is the subject for the jury. The Supreme Court hasn't said that. The Supreme Court says there are some identifications in some circumstances that don't meet a threshold standard of reliability that we allow it to go to the jury. And I suggest, although these are are somewhat unique, not unique, these are not the ordinary type of identification problems that we run into, that the whole circumstances of this are so unreliable that it should not have been admitted to the jury, that it's too unreliable for the jury to credit and to reach a verdict that we can depend on. My time is up. So if you want a few more minutes, feel free. I mean, we're not, this is an important case. I would like to do a couple of things with just a couple more minutes. One is to emphasize, I think that there are a number of issues here that if you don't believe we've established that relief should be granted in the form of a new trial, that at least an evidentiary hearing is called for. I think the Brady claims call for an evidentiary hearing if it's not sufficient on its face to grant a new trial. The question of similarity of the prior of the prior acts call for a hearing and hearings have been requested. They were requested in state court at each stage of postconviction litigation. They were requested in the court below and hearings on these kinds of material facts where the state court didn't develop the record and perhaps even on the identification. Let me talk briefly about the severance because Judge Hardam and that was the other question. It was either you or Judge Stapleton asked about the Pennsylvania Supreme Court's ruling on the severance. I think I would say. My point to help you a little. My point is let's assume for a minute that if I or perhaps my colleagues were presiding over this trial and the Janet Ryan thing, I think we can all agree was a rather odd development in the middle of this trial. Assume for a minute that I would have at that point said I know I denied the severance motion before. Now we're in a different world. Now we need to sever it. So it's isn't a question about whether severance was a good idea, bad idea. I'm saying under Ed Puh, where is the Supreme Court case on point that tells us that the Pennsylvania Supreme Court's decision in that regard was contrary to law. Okay. Well, and I would answer that in two ways again. First I would say I don't believe that Puh applies here because it is not at all clear that the Pennsylvania Supreme Court decided the severance case on the basis of a federal due process claim, such as the one we raised in post-conviction litigation. Well the argument on appeal was it was an abusive discretion. It was couched as a state court evidentiary violation. It was couched as a state court evidentiary violation. It did cite to the eighth amendment

. They were requested in state court at each stage of postconviction litigation. They were requested in the court below and hearings on these kinds of material facts where the state court didn't develop the record and perhaps even on the identification. Let me talk briefly about the severance because Judge Hardam and that was the other question. It was either you or Judge Stapleton asked about the Pennsylvania Supreme Court's ruling on the severance. I think I would say. My point to help you a little. My point is let's assume for a minute that if I or perhaps my colleagues were presiding over this trial and the Janet Ryan thing, I think we can all agree was a rather odd development in the middle of this trial. Assume for a minute that I would have at that point said I know I denied the severance motion before. Now we're in a different world. Now we need to sever it. So it's isn't a question about whether severance was a good idea, bad idea. I'm saying under Ed Puh, where is the Supreme Court case on point that tells us that the Pennsylvania Supreme Court's decision in that regard was contrary to law. Okay. Well, and I would answer that in two ways again. First I would say I don't believe that Puh applies here because it is not at all clear that the Pennsylvania Supreme Court decided the severance case on the basis of a federal due process claim, such as the one we raised in post-conviction litigation. Well the argument on appeal was it was an abusive discretion. It was couched as a state court evidentiary violation. It was couched as a state court evidentiary violation. It did cite to the eighth amendment. It did cite to the case of Tifford versus the United States and fifth or 11th Circuit case that cited in our brief that applies a due process analysis to a severance. And so certainly the federal claim was not well developed on direct appeal. All right, but if Ed Pope applies, what's the case? Okay. If if Ed the applies, I think the case is Lane and Zafiro that are both cited in our briefs. And Lane was a case where the Zafiro's 93, isn't it? Yeah, 93 or 96. And when was the P.A. Supreme Court's decision on direct appeal? 92, 94. The four Zafiro, wasn't it? I don't think so. No, it was after Zafiro. I think it was after Zafiro. But I know it was after Lane. Lane was 86. It was 90. It was 92. 90. So it might have been before Zafiro. But so they can't be faulted for not having a crystal wall and anticipating Zafiro. No, but then you take the general principle set forth in Lane

. It did cite to the case of Tifford versus the United States and fifth or 11th Circuit case that cited in our brief that applies a due process analysis to a severance. And so certainly the federal claim was not well developed on direct appeal. All right, but if Ed Pope applies, what's the case? Okay. If if Ed the applies, I think the case is Lane and Zafiro that are both cited in our briefs. And Lane was a case where the Zafiro's 93, isn't it? Yeah, 93 or 96. And when was the P.A. Supreme Court's decision on direct appeal? 92, 94. The four Zafiro, wasn't it? I don't think so. No, it was after Zafiro. I think it was after Zafiro. But I know it was after Lane. Lane was 86. It was 90. It was 92. 90. So it might have been before Zafiro. But so they can't be faulted for not having a crystal wall and anticipating Zafiro. No, but then you take the general principle set forth in Lane. That says, you know, there are some instances where the denial of severance renders the trial fundamentally unfair that it violates the Fifth Amendment due process. Okay. So I think it would be Lane and his question is, was the trial rendered so unfair by that circumstance that it violated due process? And was it unreasonable to find anyway? And I think under these circumstances, it was. And Zafiro comes along later and explains why it was because not only do we have antagonistic defenses in this case where we have Lambert trying to say it was Jackson and Reese who did this crime, not me and Reese saying it wasn't me. I wasn't involved. But we have antagonistic evidence, both in the similar acts testimony that was that was precluded because of its impact on Reese and because of the identification from Jackson. And I think those factors really do render this trial fundamentally unfair. The batson issue is really very complicated. Procedurally, it's well briefed by both sides and unless the court has questions on the batson issue, I'll certainly rest on the brief. Thank you. Thank you. With one second thought, if I may, the batson issue, I want to be clear that we're only asking for an evidentiary hearing on that claim. We're not suggesting that relief should be granted. Only that a hearing should be granted. Mr. Goldworth. The afternoon, your owners. My name is Joshua Goldworth and I present the Commonwealth of Pennsylvania's official nominal party responds to the app. The petitioners' Brady claim has two parts I'd like to address

. That says, you know, there are some instances where the denial of severance renders the trial fundamentally unfair that it violates the Fifth Amendment due process. Okay. So I think it would be Lane and his question is, was the trial rendered so unfair by that circumstance that it violated due process? And was it unreasonable to find anyway? And I think under these circumstances, it was. And Zafiro comes along later and explains why it was because not only do we have antagonistic defenses in this case where we have Lambert trying to say it was Jackson and Reese who did this crime, not me and Reese saying it wasn't me. I wasn't involved. But we have antagonistic evidence, both in the similar acts testimony that was that was precluded because of its impact on Reese and because of the identification from Jackson. And I think those factors really do render this trial fundamentally unfair. The batson issue is really very complicated. Procedurally, it's well briefed by both sides and unless the court has questions on the batson issue, I'll certainly rest on the brief. Thank you. Thank you. With one second thought, if I may, the batson issue, I want to be clear that we're only asking for an evidentiary hearing on that claim. We're not suggesting that relief should be granted. Only that a hearing should be granted. Mr. Goldworth. The afternoon, your owners. My name is Joshua Goldworth and I present the Commonwealth of Pennsylvania's official nominal party responds to the app. The petitioners' Brady claim has two parts I'd like to address. Before we get to the Brady claim, we'll get to each of the discrete legal issues. I'm going to ask you a question and I debated as to whether I should ask it but I'm going to ask it. You want to pull that microphone over in front of you, please, sir, so we can hear you? Are you the editorial you? Comfortable with the fact that a conviction for a first degree murder and a sentence of death can rest on the testimony of a Bernard Jackson and a Janet Ryan? I understand. I understand the question Judge Barry and I'd like to answer that in the context of answering the question about the Brady claim with respect to Bernard Jackson's testimony and about the police activity sheet. I mean, the evidence that was presented to the jury was the evidence that was presented to the jury and it was expected the identification of Janet Ryan, the facts that supposedly make the identification so unreliable were exactly the facts that were presented to the jury. But to address the Brady claim first, if I may, there's two parts to it. First, first, the Giglio claim about the deal with Bernard Jackson. Mr. Lev didn't really go into that perhaps you should deal with the other half of that. Okay, okay, okay, okay, okay, very, very well. The state Supreme Court ruled unanimously that this piece of evidence wasn't material and the state court's ruling on this claim was not unreasonable and I can give an illustration as to why. Now, we know the petitioner himself gave a statement to the police after he was arrested in May of 1983 and after he stopped falsely claiming that his name was John Maul. Now, the fact that he gave the statement to police came into evidence, although not the substance of it. There was a back and forth about whether or not the substance of the statement could come in, where the judge initially held that it could come in if the petitioner's lawyer was foolish enough to bring it in and then the judge held that, you know, on further consideration that it was out even though not the attorneys seemed to be arguing that it should come in. I think that if the petitioner tried to make based on this police activity sheet, this third party guilt argument that Woodlock was really the third person or that Bernard Jackson can't even make up his mind about who was with him that night. There's no question. Bernard Jackson was very clear who was with him that night. It was Reese. No, I understand that, but the claim is that this piece of paper, this police activity sheet could have been used to show that somebody else committed the crime or that Bernard Jackson can't even make up his mind about who the other person is besides Reese

. Before we get to the Brady claim, we'll get to each of the discrete legal issues. I'm going to ask you a question and I debated as to whether I should ask it but I'm going to ask it. You want to pull that microphone over in front of you, please, sir, so we can hear you? Are you the editorial you? Comfortable with the fact that a conviction for a first degree murder and a sentence of death can rest on the testimony of a Bernard Jackson and a Janet Ryan? I understand. I understand the question Judge Barry and I'd like to answer that in the context of answering the question about the Brady claim with respect to Bernard Jackson's testimony and about the police activity sheet. I mean, the evidence that was presented to the jury was the evidence that was presented to the jury and it was expected the identification of Janet Ryan, the facts that supposedly make the identification so unreliable were exactly the facts that were presented to the jury. But to address the Brady claim first, if I may, there's two parts to it. First, first, the Giglio claim about the deal with Bernard Jackson. Mr. Lev didn't really go into that perhaps you should deal with the other half of that. Okay, okay, okay, okay, okay, very, very well. The state Supreme Court ruled unanimously that this piece of evidence wasn't material and the state court's ruling on this claim was not unreasonable and I can give an illustration as to why. Now, we know the petitioner himself gave a statement to the police after he was arrested in May of 1983 and after he stopped falsely claiming that his name was John Maul. Now, the fact that he gave the statement to police came into evidence, although not the substance of it. There was a back and forth about whether or not the substance of the statement could come in, where the judge initially held that it could come in if the petitioner's lawyer was foolish enough to bring it in and then the judge held that, you know, on further consideration that it was out even though not the attorneys seemed to be arguing that it should come in. I think that if the petitioner tried to make based on this police activity sheet, this third party guilt argument that Woodlock was really the third person or that Bernard Jackson can't even make up his mind about who was with him that night. There's no question. Bernard Jackson was very clear who was with him that night. It was Reese. No, I understand that, but the claim is that this piece of paper, this police activity sheet could have been used to show that somebody else committed the crime or that Bernard Jackson can't even make up his mind about who the other person is besides Reese. And if they had made that argument a trial, I think we'd be here in a claim of an effective assistance council right now because the substance of the petitioner's own statement to police, which is discussed in volume seven of the appendix that around pages 29, 50 to 29, 60 would have come in where Jackson was impeached 11 ways to sundown. There is nothing. There is nothing that he wasn't in peace. He told so many stories. He even admitted. He even admitted that he was totally inconsistent in what he had said. I understand. Wouldn't this that for the first time and in total contradiction with the one thing the prosecutor admit he was consistent the prosecutor said in summation that it was Reese and Jackson all the time. Could this third party ID have been the nail in Jackson's credibility coffin? No judge, Barry. I don't believe so and I believe this state court's litigation was reasonable and the reason I'm saying that is because if they had argued this at trial that this piece of paper proves that it's either. I didn't have it. No I understand that but the question is what good counsel have done with it. That was the argument the petitioner is making. That's the argument and I'm going to say that in that case, and I should say this trial was back in 1984. This we're trying today. There's no question that a document like this would be produced to the fence. I think it this. You turn it over. Pardon me? You turn it over

. And if they had made that argument a trial, I think we'd be here in a claim of an effective assistance council right now because the substance of the petitioner's own statement to police, which is discussed in volume seven of the appendix that around pages 29, 50 to 29, 60 would have come in where Jackson was impeached 11 ways to sundown. There is nothing. There is nothing that he wasn't in peace. He told so many stories. He even admitted. He even admitted that he was totally inconsistent in what he had said. I understand. Wouldn't this that for the first time and in total contradiction with the one thing the prosecutor admit he was consistent the prosecutor said in summation that it was Reese and Jackson all the time. Could this third party ID have been the nail in Jackson's credibility coffin? No judge, Barry. I don't believe so and I believe this state court's litigation was reasonable and the reason I'm saying that is because if they had argued this at trial that this piece of paper proves that it's either. I didn't have it. No I understand that but the question is what good counsel have done with it. That was the argument the petitioner is making. That's the argument and I'm going to say that in that case, and I should say this trial was back in 1984. This we're trying today. There's no question that a document like this would be produced to the fence. I think it this. You turn it over. Pardon me? You turn it over. Of course we wouldn't. I think at this time documents like this weren't even routinely provided the prosecutors. Now I understand as well as the next person that for purposes of Brady the prosecutor is treated as if he knows whatever the police know whether or not he actually knows it but the claim is but that's only part of the claim. Part of the claim is that the prosecutor intentionally and knowingly lied and intentionally made false argument and attention. No, no. I think Mr. Lev has said that's not really there are. Okay. Okay. That was that was that was raised in their brief. Well, there was a hint. I understand that. But the district court didn't even deal with this. The district court dismissed it summarily. It didn't refer to Woodcock. Woodblock by name and didn't even refer to the police activity. This this this the October the October 25th report. So he just disposed of it in two sentences. Exactly

. Of course we wouldn't. I think at this time documents like this weren't even routinely provided the prosecutors. Now I understand as well as the next person that for purposes of Brady the prosecutor is treated as if he knows whatever the police know whether or not he actually knows it but the claim is but that's only part of the claim. Part of the claim is that the prosecutor intentionally and knowingly lied and intentionally made false argument and attention. No, no. I think Mr. Lev has said that's not really there are. Okay. Okay. That was that was that was raised in their brief. Well, there was a hint. I understand that. But the district court didn't even deal with this. The district court dismissed it summarily. It didn't refer to Woodcock. Woodblock by name and didn't even refer to the police activity. This this this the October the October 25th report. So he just disposed of it in two sentences. Exactly. Well, I think that I think the district court said that that it would require considerable speculation to even assume that he mentioned either the arguments of the defendant or the name of Lawrence Woodblock or anything to do with the police activity sheet of October 25th. And I'm pointing out just by way of illustrating the reasonableness of the state court's decision on the materiality of this that if they try to make this about this piece of paper proves that this fellow Jackson is you know that the real person is Woodlock with a Jackson can you then keep the story straight about who person number three is it will you know that at that point the prosecutor is going to say all you know all bets are off we're going to we're going to bring in the petitioners own statement to police in which in which he concedes number one according to number one I don't understand that argument. I think speaking only for myself we should move on to some of the other points that perhaps I can understand more easily. Do you have any more questions on the Brady point? No, no I'm good to know. Why don't you move to the next day? Okay, with respect to the identification claim. Based on what I've heard here I mean not only was the state supreme court's decision not contrary to supreme court precedent or otherwise unreasonable the rule the petitioner is arguing for here would be a new constitutional rule and I mean violation of T even if Ed Pettidon didn't exist I mean not only no supreme court case has ever held that the proper remedy much less the constitutionally required one is blocking an court identification when there's no substantial risk of irreparable misidentification from a prior adivination or if you when you've had an in-person show up in violation of the defendant's rights to counsel. But what about the severance shouldn't shouldn't the trial judge have realized that they had entered a different realm once the Janet Ryan situation unfolded as it did? I don't think the context in which the identification was made has any constitutional significance I think that for purposes of our purposes constitutionally there's no significant difference than if the judge had just told the prosecutor okay you can call you can recall Janet Ryan. I mean I agree that the trial court's decision to say well you can you know well prosecutor you can't recall or just because you've already left the stand but defendant but co-defendant you can call or I agree that's idiosyncratic and I think actually wrong but I think as a matter of constitutional significance the only the only I think it's the same as if the judge had said okay you can recall this Janet Ryan to the stand and she can be cross-examined about this including why she didn't say anything before and about the circumstances under which she seemed like it's a little more than than that I mean she got a glance see the first let's go through her testimony she glanced but she didn't see and he was five foot four to five foot six this is the first and she didn't know who it was but she was visibly upset on the stand there's a break the prosecutor says to her why you upset she said I think the guy who had the gun is in there where's that fact and they put her back on now all of a sudden she has gotten a look at him she saw him at the stairs but she also confirms that he's five foot seven and she identifies recent five foot seven that's her testimony in fact she says he's shorter than five foot seven because she was behind the bar and it was lower and the man with the gun was at the other side of the bar and it was higher so she was looking up so he appears taller than he is so he's about five foot five and then the question is asked how tall is Mr. Reese is Mr. Reese five foot seven and she says yes and of course Lambert is six foot six foot one this is our this is this is the witness that puts the gun in Lambert's hand right yes and but all of this all of this was before the jury and the rule that's and and the constitutional rule that the petitioner is arguing for so you have to go back you have to keep going back to the constitution because that credibility speaking only for myself the weight that hurt to which her testimony given to her testimony in my judge is zero I understand that and I have the constitution you can hold up right and say as a matter of constitutional principles you prevail tell us why I mean in the Supreme Court case of Watkins versus Souters which the which the petitioner cited his brief for Justice Brennan's dissent although not the majority opinion the majority act holds that no there is no that even if an out of court in lemonade ruling on on identifications is desirable it isn't constitutional required there's no reason why you can't do this in front of the jury and in fact if the question isn't if the question is just one of the reliability of an identification that's one of the things that juries do and that and that we expect juries to be able to do as instructed by the court I mean the constitutional rule that just says some identifications even without a prior out of court ID even without a wave violation or so unreliable that that that must be kept all together away from the jury that mean that is not I mean there is no that is not what the Supreme Court has has thus far held the constitution has required and if they were to if they were to say such a thing if they were to establish such a rule it wouldn't deploy it wouldn't apply to cases in a collateral review I mean I mean I can I can all I the question the question I mean the our issue that was brief in this case is what you know was the state courts ruling on this contrary to Supreme Court precedent or the or a reason of obligation of Supreme Court precedent and on that I'm confident the answer is no I mean that that and that's the question before the court you see I guess I guess I know trial judge at heart and and I I say I look at whether or not as a matter of fundamental fairness this conviction should stand and this sentence should stand and I look at Jackson's testimony I mean Jackson was royally impeached first of all he's got the murder weapon was the 38 yes yes Jackson says Reese had it the night of the shooting the 38 was Reese's Jackson's story is all over the play and and Lambert had only the 32 this is consistent testimony through it he never had that he never had the 38 the night for the shooting all right you've got the barmaids identifying the shooter as being five foot seven or less you've got you've got Jackson saying Reese told me he shot two guys then he then Jackson says Reese told me that Lambert shot and then he tells us the jury what Lambert supposedly said to Jackson but he said that was a lie I was making that up I was this plus Janet Ryan's testimony is what we have before us seeking the affirmance of the district court the conviction for first degree murder and a sentence of death and I think I think Judge Barry that was for the reason why I was arguing connection with the Brady case that just as the US Supreme Court held in the Wang versus Belmont this it's not good enough to say well the defense could have done this and then assume that the rest of the world is static you have to be you have to you have to think about nobody can read though nobody can read in my judgment speaking only for myself can read the testimony of Bernard Jackson and the cross examination and the testimony of Janet Ryan and the cross examination and come away and I speak only for myself with the feeling that justice was that's all said my piece if I can if I can briefly address the the severance claim the with respect to severance claim I mean first for the reason state in my brief I don't think I don't think Zafiro is a federal constitutional case establishing you know in any rule that's applicable here it's a federal rules case in which the case actually stands with the proposition that there's a strong preference in favor of joint trials and as far as United States versus Lane goes that's I mean that that's again a federal rules case in which in which the US Supreme Court the issue was cannabis joined during the federal rules you know be harmless error various federal courts or appeals had held know it can't be and the Supreme Court granted certain said they can be and you know and and and and and in this case it was and in fact what the Supreme Court actually said in this case was usually the issue of a misjounder isn't a constitutional question at all and then there and then and then there and then there's a footnote in that it says it would only be a constitutional issue if you were talking about fundamental fairness but I don't see how that establish how that how that is a holding of the Supreme Court that you know that is you know that this that the the state courts decision on severance could be argued as an unreasonable application of if the court is no further questions as to the as to the go based you thank you again I don't have much to say and reply on the guilt phase issues I would I would simply emphasize here that that all of the concern that Judge Barry expressed as your personal opinion I think goes into the materiality questions of the Brady that's why this this police report that maybe in some other cases where there was overwhelming evidence or strong evidence of guilt might not require a new trial in this case because there's so little confidence in the reliability of the jury's verdict from the get go let alone all of the kinds of significant constitutional concerns and errors we've raised here I mean the the district attorney I know we have an ed by standard but we know things were wrong here the district attorney just told us that that he didn't think Brian should be allowed to testify for the co-defendant and that this paper would have been turned over these are not just mistakes these are serious constitutional questions that impact our our reliability in our undermine any confidence we could have in the reliability of this verdict and and so a new trial really is appropriate miss you you you let off today with your Brady issue and it's your the first point in your brief is is that in your view your strongest issue I don't mean to I had I have to tell you probably I think so but I had a very difficult time deciding which I think are the strongest issues in the case because I think particularly the Brady issues the the the the preclusion of evidence about Jackson and Reese's conduct together and the identification issues are also critically important issues going right to the heart of this case and then the severance kinds of is an umbrella that that takes a lot of that into account that it's a very hard question for me to answer is the which is our strongest issue you said you were asking only for a man for an evidentiary hearing on the batson matter where and when specifically did you request a or did your client request a hearing in the state court and evidentiary hearing in the state court explicitly in PCR a litigation now in which PCRA the batson was raised in the first PCRA which would be Lambert too and it's those pleadings I believe that are in our subliminal as opposed to Judge Stable didn't request and he can certainly speak for himself was where did you specifically request an evidentiary hearing on the batson issue in in the PCR a litigation at the PCR a trial level and on appeal but but I would also say about this batson was raised on direct appeal abysmally and and I think if the court looks at the brief you know it's raised a year and a half after batsons decided and doesn't cite the batson there's a part of the argument that doesn't even deal with jury selection that deals with non-capital sentencing it it doesn't make any sense and yet if the Pennsylvania Supreme Court had followed what the US Supreme Court did in batson which is when before batson was decided a batson claim was raised a trial and there wasn't any factual development of the record the proper remedy was to remand for a hearing that's what the Supreme Court did in batson they didn't grant relief they remanded for a hearing because they set forth this new standard new standard applies to Lambert by raising the claim he should have gotten a hearing then but we certainly specifically asked for it in in PCR I let me go on to the penalty phase because in in in some ways the penalty phase lacks the same kind of confidence that the guild phase has and and most of that involves the circumstances in which there was no mitigation evidence presented and no argument made so so let's talk first about what happened there and then we can talk about the instructional issues that I think are are very prevalent I think I I reserved I think there was 12 minutes left and I would reserve one minute I think I said for for penalty phase rebuttal because the clock is as the red light on and just curious as to the timing I have to tell you judge Barry I've really bad eyesight and I can't even see the lights that way anyways so I just keep talking to you tell me now with the part as it has the time right after the verdict mr. Lambert was emotionally distraught he was angry he was frustrated the verdict that came in about Janet Ryan's testimony and for the first time defense counsel had been planning on presenting mitigation he'd been planning on calling the defendant's sister and telling about his family history telling about his military service in the coast guard his honorable discharge for medical reasons the mental health and drug abuse problems that he had after his discharge but defendant for the first time suddenly demanded that counsel present no evidence and make no argument in his behalf and counsel went to the court and said defendant mr. Lambert doesn't want me to make argument and doesn't want me to make uh make present evidence because he feels he's innocent he's been wrongly convicted he feels Bruce Reese with the shooter and he thinks that I'm part of the conspiracy that led to his conviction and so the trial judge brings mr. Lambert in and starts asking mr. Lambert not about that decision but about whether he wants to testify or not mr. Lambert says yes I'd like to say something to the jury defense counsel objects defense counsel says that's not why we're here mr. Lambert shouldn't testify before the jury he's temperamental his temperament might show through I don't believe it's in his best interest he shouldn't testify the judge says to mr. Lambert we've heard what your lawyer says do you want to testify and Lambert says no I'll change my mind then the judge says well your lawyers also told me you don't want to present evidence or have a make argument is that correct Lambert says yes then after a little bit of discussion about a possible jury instruction defense counsel using a profanity and and if you've read the entire trial or or your your staff has read the entire trial you know that that defense counsel often use profanity and truly uncivil and inappropriate language usually outside the presence of the jury throughout this case but the clearly defense counsel had his own hotheadedness problems the judge says do you want you don't want your lawyer to do that Lambert says that's right I don't judge says fine and so then we have a penalty phase hearing where there's no evidence presented the prosecution simply incorporates the guilt phase of the trial defense counsel makes no statement to the jury other than to say decide the case as you want and the only argument to the jury comes from the prosecutor I submit to the Court that that that creates a constitutional problem as to whether Mr. Lambert made a knowing intelligent waiver of his right to present mitigation evidence but your friends will tell will tell us that that's not a constitutional right there is not a constitutional right to present mitigating evidence well and they'll give us the name of the case that says I know what it is. Chereiro versus Landry yes that's right but Chereiro didn't say there was not a constitutional right Chereiro was a case where the court applying Ed Padeffrains it was an Ed Padeffra case and they had to give deference to what the state court had done and the findings of fact that the state court had made was determining whether or not it was proper for the federal court to grant an evidentiary hearing on the question of trial counsel's ineffectiveness and his failure to properly investigate evidence of mitigation that was the issue in Chereiro it's not the issue in this case Chereiro didn't decide whether or not there's a constitutional requirement of knowing intelligent waiver that wasn't the issue before them and and they were paying deference to the state court here let me start off with the standard of review in this case your review of this issue is a denove over because the Pennsylvania Supreme Court did not address the merits of this issue this issue was raised on the first PCRA in post-conviction that would be Lambert too that's the opinion that produced that fractured result with two judges authoring an opinion announcing the judgment of the court and three judges concurring and two judges dissenting there was no common grounds if anything the opinion announcing the judgment of the court dismissed his claim on on procedural grounds finding it was waived because it wasn't raised on direct appeal and and of course that kind of procedural ruling would not be an adequate and independent default because direct appeal the time of the waiver occurred during the relaxed waiver time in Pennsylvania and your honors are all aware of the body of case law that says that that's not an adequate and independent default so there's no merits we want to establish first what the issue is here you say knowing and voluntary wasn't a knowing and voluntary decision to not to offer mitigating evidence but you don't claim and I don't understand there to be any evidence in the record as to what Mr

. Lambert knew or didn't know about mitigating evidence my understanding of your argument is that the constitutional requirement of knowing and voluntary means that the court has got to conduct a colliloquy and make a and give the necessary advice and make a determination as to whether it is knowing and voluntary am I right about that I would say mostly right I would simply expand on that to say I think in any type of claim where the question is what's required for knowing an intelligent and voluntary waiver the court looks to the totality of the circumstances so I think you can look at certainly the colliloquy is a critical part of that and we emphasize that strongly but I think the court looks to the totality of the circumstances including Lambert's temperament his state of mind at the time of the waiver is mental health history all the evidence that the court knew about it the time is fair to take into account to determine the voluntaryness of the waiver didn't we hold in us versus penny cook and didn't the Supreme Court say in land again that there is no duty of the court to address on the record and and advise regarding the exercise of the right to testify I think you did say that I don't think that's what the Supreme Court said in Landrigan with all in Landrigan it was talking about the right to offer mitigating evidence which is even more wrong point and what's holding and what the majority said in that case is again they were applying an edpest standard they said there's no clearly established federal law and then in the very next paragraph they go on to even assume that there was such a rule was such a requirement that that that requirement was met in this case and so there was no reason for the federal court to have to hold an evidentiary hearing where do you draw the line where does your principal draw the line I mean you have a constitutional right to put on a defense the defendant does of course and occasionally defendants do not put on when after the government is all through they do not put on a defense well I think that you're saying the Supreme Court is going to hold that the judges got to hold on hold on no no we're going to have a separate hearing here and we're going to address all of this and what the effect might be of your decision not to put on a defense the Supreme Court's going to hold that no no I don't know what the difference where do you draw what's the distinction between this case where he's electing not to put on mitigating evidence at the penalty phrase and the situation where the defendant election not to put on the defense I think the distinction is in the fact that it's penalty phase that that to use a colloquialism that's constitutionally based death is different and that that penalty phase hearings because of the eighth amendment the eighth amendments requirement of reliability that the eighth amendment requires height and standards of reliability in a penalty phase situation I think the other difference judge Stapleton is the decision to put on a defense is a decision that at trial isn't trusted to the lawyer we know it's ultimately the lawyer who gets to dictate what the defense is going to be it's the lawyer who gets to determine what they're going to argue to the jury in closing that's a lawyer's decision not a defendant's decision defendant can testify but he can't he can't insist that a lawyer put on a certain defense I think it was this isn't in our brief where we're stepping a little aside but I think it was Florida versus Nixon the Supreme Court case where there is a claim of ineffectiveness because a lawyer he conceded defendant's guilt of a lesser included offense and defendant challenged that didn't even consult with his client stood up there and told the jury's client was guilty trying to lay the groundwork for to avoid the death penalty right and the Supreme Court said that was permissible for counsel to do that that was because that was counsel's choice the so we get to the eighth amendment and it becomes the defendant's option for reasons I quite frankly don't completely understand but the defendant's option to dictate the presentation of of mitigation or the what counsel can say to a jury just as the decision as the whether he's going to testify or not just as a decision unlike an issue what do you how do you understand it's a penny cut then because penny cut is a is a guilt phase trial level case that that doesn't in which those decisions are left to except for the decision to testify which is personal the other decisions are left to try but we did say in penny cut that there's no duty of the trial court to advise regarding taking the stand but but certainly there's a body of laws I understand and I'm not very versed in federal criminal procedure of ineffective assistance or counsel cases or counsel misled the defendant about is right to testify and that there are other challenges that go through to that but I but the point that that I want to come back to is I think that the fact that it's a death penalty proceeding that it's the eighth amendment that's involved that the issue here is life and death that it's becomes the defendant's issue makes this very different than then penny cut and that's where I would draw the line I would draw the line very cleanly between trial and and a capital sentence let me I don't know I don't have much time anytime but I don't have any so let me ask the cold well claim what distinguishes this like we relied heavily on Riley and in our brief and I know judge Barry and Judge Stapleton you were both on the descent of Riley but but I think you should find in this case it's different than Riley because the the critical thing to the cold well claim to me is what in Riley judge Alita's opinion relies on that it was just mere acknowledgement of the right to appeal and and what the jury was told here by the trial judge is much more the jury is told that not only that there's a right to appeal but in addition to the Pennsylvania Supreme Court's authority to correct errors that the Pennsylvania Supreme Court will decide whether to affirm the sentence of death or to vacate and remand for the imposition of a life sentence now now that goes way beyond what was said in Riley it actually goes way beyond what was said in cold well it tells the jury in that plain language that the Pennsylvania Supreme Court's going to be the ultimate arbiter of what sentence is appropriate and that's why it's a cold well violation and that's why although I respect your descent in Riley I think not only because it's very decisive but because of the differences between this and Riley that this is a much more offensive instruction than the argument in Riley and really you're on a supportive recognize this is not one of those cases in which the claim is and we have cases where this is what's alleged the council simply didn't prepare for the penalty phase until the night before because it just didn't occur to him that the jury would actually find the petitioner guilty of first to remurder this is a case in which defense council is obviously preparing to present evidence and argument that would pay to sympathetic albeit highly sanitized and incomplete the other petitioner well let me ask you this question um you you and and the district court seem to deal with the knowing and intelligent question this way that he didn't say he he doesn't say now he didn't know therefore we will assume he did know that if he doesn't put on mitigating evidence you'll get the death penalty automatically because two of the aggravators were beyond dispute well judge maria I mean um I mean the Supreme Court has been clear that even when you're talking about waivers of things like the right to appeal or even the right to go to trial altogether and and to plead guilty there's a difference between directing collateral review and on collateral review it's not enough to say you had a bad colloquial not just in the US versus this he there we go again we're now we're into the standard on collateral review which is you know probably is what we have to apply but I'm telling you where is there anything that says he knew he was going to die he was get the death title it was your as a matter of law if he doesn't put on anything given the the way this case was presented he died you know and we have a presumption of attorney effectiveness and given given what this attorney was planning to put on I have it is difficult for me to imagine that counsel didn't tell his client you're saying it's difficult to imagine counsel didn't tell him that he was going to die there no you're honor there's but there's no allegations or suggestion to the contrary that's what I said but nobody you know but you're honor because there's no allegation that therefore it must be so well but you're honor there it but there as you knew that he was going to die judge Barry you know maybe at that point he didn't care maybe he needed a cooling off period maybe after this verdict came down on the testimony of Bernard Jackson and Janet Ryan maybe they should have been a cooling off period before they immediately went into this judge Barry the petitioner has asked for an evidentiary or hearing in a chance to make the record on a number of claims but not this one but not but not this one this is a claim in which his sole claim is because the record doesn't show it you must assume that he that he didn't know and that is the exact argument that the Supreme Court in even US versus Tim Rec which deals with the waiver of all trial said is insufficient for collateral review in fact in an on-bond case this court took surely after US versus Tim Rec where the person pleaded guilty and said there wasn't a good colloquial that told me what the elements of the crime were that I was pleading guilty to it came up on collateral review on on 255 and and unanimously this court on bond held are you alleging that you actually didn't know because if you're not saying if you're not saying that becaus