Legal Case Summary

May it please the court my name is G. A. Kim appearing on behalf of a Pellant Lesmond Mitchell The district court aired by denying without a nevidentiary hearing Mr. Mitchell section 2255 motion to vacate his convictions and death sentence under the federal death penalty act This morning I planned to focus on the certified issues of ineffective assistance of council and I'd like to reserve eight minutes for a bottle On this record the district court could not properly deny relief without nevidentiary hearing for two reasons first of all the statutory framework set forth by section 2255 contemplates a low threshold for nevidentiary hearing the Files record emotion was conclusively showed that the petitioner the movement is entitled to no relief This court is glossed that standard is Indicating that a hearing is required Unless the allegations failed to state acclaim for relief are palpably incredible or patently frivolous Let me ask you this on on the certified issues. What would what what would you need a hearing on? We would need a hearing on First of all the district court the second reason that the nevidentiary hearing is warranted is because the district court resolved certain factual disputes in the record silently and in the hearing The you mean example of what what what you need a hearing for Certainly for instance the district court found is sort of foundational premise of the decision that the trial council made a strategic decision not to present a voluntary intoxication defense or to Puyter phase of the trial the decision completely overlooked the fact that Such instructions were requested at each stage. Okay

. Well, you don't you have that in the record what do you need a hearing for? Excuse me, Your Honor The fact that they requested an instruction is in the record already. So why do you need a hearing? Yes, Your Honor, however the district court found that credited trial council statements that They did not pursue okay? Maybe she made an error of law where what fact do you need to elicit? That isn't already in the record there are other factual disputes that she resolved for instance whether The first mental health expert Dr. Parish that they consulted psychologists had diagnosed Mr. Mitchell a sociopathic whether trial council followed what is that was that disputed somewhere? Yes, Your Honor They say he was diagnosed sociopathic and somebody else says he didn't diagnose him sociopathic one one attorney said that She did not provide the diagnosis the attorney who did the bulk of the mitigation but was Retained to sort of consult and coordinate the mental health presentation another attorney who was less involved in mitigation said I believe that she did a diagnosed an associate of panic the decision takes the second attorney's statement Based on his big belief that that was a diagnosis and does not mention the diagnosis itself in the record No, Your Honor there there was no if this was based on council's deposition testimony that that first This is Dr. Parish the psychologist There was a second expert Dr

. Reren's who did provide diagnosis a psychiatrist was ready to dispute that he's sociopathic There isn't on this record You didn't come forward with anything from another doctor in the in the 20 to 55 proceedings to say this guy's Another problem's not that's sociopathic The doctor Stewart the psychiatrist who submitted a declaration in the 20 to 55 Diagnosed Mr. Mitchell with post-traumatic stress disorder and substance induced psychotic disorder and Dr. Morens when given the information about Mr. Mitchell substance abuse in the period immediately preceding the offenses Said that that could have made a difference to his diagnosis and that's also one of the errors of law that the district court made here was that The district court said that council has no affirmative duty to present experts With this sort of background information and while that may be true at the guilt phase This court is drawn as sharp distinction between the guilt phase and the penalty phase and there is such an affirmative duty at the penalty phase and The result of this deficient investigation of intoxication in particular Council's failure to interview the Residence of the Nakai House regarding substance abuse and intoxication Led directly to that gap in not only in the social history of report but also in the Psychiatric report which they had so we have a lot of Expert reports and the record that were contemporaneous with the trial proceedings Were any of those introduced in the trial at all were they used at all in the trial? No, your honor. There was a social history report Prepared by the mitigation specialists and there was a psychiatric report that also included some neuropsychological evaluations and another Expert had performed those were not presented at trial At one point mr

. Bartolomai who handled most of the mitigation a few weeks before trial started said Excuse me when you say try Are you distinguishing between the guilt phase and the sentencing phase? No, your honor. There were not They were not submitted it either phase At one point one of the attorney said yes, there probably will be a social history expert To present in the penalty phase however No social history expert was presented Again, this conflicted with trial counsel's deposition in which they stated well early on We had decided not to present that kind of information But they still had all these reports then so did you get them in discovery During the habeas proceedings is that how they're in our record? Yes, they're in there in our record through the files of trial counsel So what is your contention with respect to each of those experts should they have did they are your argument that it should have triggered a further duty of investigation on the part of The trial counsel or that these apart should have been introduced instead of going with the Life worth saving defense of the penalty phase with respect to each expert taking a gap in both reports was This failure to interview the people he was living with at the time regarding substance abuse There was conflicting information in the record as to whether he was intoxicated at the time the FBI statements while they varied Tremendously and other details were fairly consistent in mentioning alcohol and toxication trial counsel's depositions they said that he denied it to them in They essentially Delegated this investigation of intoxication to their mitigation specialist Who spoke about some substance abuse with mr. Mitchell However, there are indications that he had stopped using certain drugs a month or two before Mr. Mitchell provided different information To the psychiatrist who apparently didn't know for instance that he had used nothing better mean He didn't have this background information that we now know regarding the kinds of substances he was using in the months weeks days before the degree to which he was using them and That is something that he said could have made a difference to his diagnosis Said something about the decision Being made before the trial as to what mitigation Strategy they would pursue yes trial counsel two of the three trial counsel basically said that you don't want to present negative information From his background regarding the abusive childhood Whippings beatings verbal abuse one Of the attorneys who did the penalty opening closing said Yes, we sought to bring out that information. I thought that was well presented if you look at the record of the penalty phase There was mention of he had a terrible childhood

. He had an awful childhood That was limited to information that he had a cold home As the government put it his mother wasn't in the picture at times his Grandmother perhaps was overly focused on her career They had so there is also a failure to present information of which they were aware once they Had decided to go down this road and there's another so they made it they made a Judgment call that they thought a different avenue would be more productive I would disagree your honor. Well, you just said I mean they had this information and decided to do something else Two of the attorneys said that they had decided not to present it at all So again, there's a conflict between what they said Okay, what's his decision made? Because one of the questions and We'll be looking at is the investigation When did they decide at what point was it decided that they wanted to show that this was a fine fellow? It's it's unclear honor. That's one of the disputes in the record It's from based on counsel's representation that there might be a social history expert to Presumably to bring out the report of the difficult childhood the troubled upbringing in the social history report It couldn't have been made more than a few weeks before trial. There's no discussion of why Whether such an expert was consulted. There's no evidence in the record of that But we do know is that they obtained all this information through the what's in the oakenfells? their name and Bartola May who was running the mitigation show Apparently decided to pursue a different course and he gave his reasons why isn't do I do I understand the story right? He gave his reasons why however, it's not like they said gee We didn't you know, I didn't realize it was in the file or You know, I was goofing off for a different time

. I mean they had this information and then he made a Lawyer's judgment that a different mitigation Defense would be more profitable However, the record shows that they did in fact try to bring this information in That's what Bartola might thought however attorney sears it yes, we that was part of our plan So again, there's a deep conflict between what the different attorneys are saying regarding There's strategy. There's no dispute about the fact that they knew this information is that true? They knew much of the social history information Bartola May went with oakenfells to the reservation and interview these people with her didn't he? I'm not clear whether he went with her he interviewed some of the closer family members They didn't know about the substance abuse prior to the offenses they thought He was no they did know they said they looked for they looked for evidence to support an intoxication defense and they couldn't find it Isn't that what they said they looked at the FBI crime scene photographs and they talked to him about it They talked to Mitchell about it Yes, however if you know under prevailing professional norms if there are these inconsistencies You can't just rest with Mr. Mitchell statements right so they looked at the photos The other person who was there was a co-defendant they couldn't very well get it from him and Your client denied it to them Yes, your honor, however they failed to interview and here looking at the penalty phase Beyond just intoxication at the moment, but the broader universe of substance abuse they fail to interview His associates in the you know the people he was living with at the time are even his Mother they didn't interview his mother did they they attempted to they were not very successful in doing so well They did in fact go in contact or didn't they they did contact and they wound up Getting on her wrong side isn't that right the mitigation specialist and the attorneys. Yes, did alienate Mr. Mitchell's mother did they interview the grandfather who was Person who's primarily who brought him up? I believe that they did talk to the grandfather There isn't there is no information the record as to what was Elicited from him They're the defense lawyers say You know when you consider the facts of the case you know them as well as as we do how horrendous they are They made a judgment call that In fact this guy may have been partying hard before they did this It's going to be a hard thing to sell Especially since it was part and parcel of a planned armed robbery Why why would that be an unreasonable thing for lawyers to To conclude It would not necessarily be unreasonable if it had been backed by sufficient investigation However again because they did not know They said we thought he was drinking some Partying was sort of his term taking some marijuana They One of the attorneys said well

. I didn't think you know meth was really on the reservation at that point He may be extabled in these harder drugs, but he wasn't really addicted to them So you you I want to understand it so you want an evidentiary hearing on On whether in fact this was a strategic decision in the penalty face based upon a Resumble investigation as required by the 80 rules. Yes, Your Honor also I think the fact that they in fact sought this impaired capacity instruction at the penalty phase belies Their statements in the depositions that we didn't want to bring any of this in and looking at the record it appears to be a sort of last second decision Tell him I who was primarily handling this phase when asked at the Deposition what do you remember about seeking that voluntary intoxication instruction? He said I I don't really remember Discussing that before it was done. I was focused on other things I get back to the question I asked you at the beginning these facts that you were telling us about our all in the record already including Bartolome is statement that you're quoting now Now you're I think your argument correct me if I'm wrong, but I think what you're saying is that Judge McGee had This information and just came to the wrong conclusion about it Well on this record if there were disputes between those she couldn't resolve that without the hearing Part of the reason why in cases like Massaro the Supreme Court has encouraged In effect the assistance claims to be brought in 20 to 55 is precisely to test the demeanor Incredibility I Think if she were to draw a factual you know make a factual finding on this record It would have to go on the basis of the undisputed record which is that they did in fact seat to present these defenses and You know cases from Wiggins to Richter say that Courts shouldn't indulge counsel's post-toc rationalizations of what they did when it's belied by You know the undisputed evidence in the record so if I got you right if if we were to send this back for an evidentiary hearing the purpose of the hearing would be to ask counsel Why did you do what you did? It would be Partially that and also just simply to make this finding with the process that This Supreme Court has indicated That's kind of vague can you tell me specifically what you'd want to develop at the hearing one was why did counsel make the decisions? They may and when did they make them and if they made them who made them and if they if they intentionally Deviated from them was at a strategic decision. Yes, your honor. I'm trying to get you to tell yes

. Yes, your honor Given all of this information in the record about We plan to bring these you know, we plan to call social history expert at one point they said oh We might we might call the knockout brothers as witnesses without ever having interviewed them If these worst strategic decisions if they did go back and Confront Mr. Mitchell with this evidence Of intoxication when was it done? Who was handling which part of the penalty present phase presentation the record as it appears now gives the impression of a too many cook serve situation and that you know this court has held that you know Failures in the penalty phase investigation or presentation Emerge from a collective failure in that part based on this role confusion that that Can also be deficient performance? so That is what we would wish to establish a hearing and basically at 2255 Requires such a hearing as long as the claims are conclusively frivolous or incredible They'd circuit as it unless The record affirmative refutes that there was no deficient performance and no Prejudice you deposed all three lawyers Defense lawyers the government it was the government's depositions, but yes, there's cross examination You have a ten or a half minutes you wanted eight you wanted to save it through a battle. Yes, your honor. Thank you Hey Hey, please the court. I'm Vincent Kirby from the district of Arizona The question for the court the court has developed some of this is the investigation that was performed the factual findings by the district court judge Are not clearly arounies they defend the defense argues some The factual found okay the fact that there was a mitigation report that there are psychological reports that friends family school officials were interviewed the defendant was interviewed in great detail There's really nothing that they are missing there is this over Writing concern that they did not Interview the Nakai brothers about what exactly was going on in the days The not the question is Did they conduct the kind of investigation? That's required Under the a B

. A. Guida in for instance in 2003 Which requires the investigation of the whole family in social history including physical sexual emotional abuse family history of mental illness cognitive impairment substance abuse domestic violence all of those family connections Particularly the grandfather with whom he lived Whether that was all performed as the investigation under the 2003 guidelines You are you are quoting from the 2003 guidelines We we submitted that because of those guidelines came out about a month before the trial started that this Investigation should really be looked at about three months. We we kind of what we did the timeline of it in our chambers actually You had maybe three to five months when when they became effective, but they had actually been written and and I mean so you were you operated clearly under both the 1989 and the 203 guidelines and you were one of the trial council, right? I was the prosecutor you were the prosecutor. Okay, so Were you aware of the guidelines the two or three guidelines back then I Know I was not They really were guidelines for the defense, right? They are not very many guidelines for the prosecution Don't just perhaps another day we can discuss But we do have guidelines I mean you know they may not be written by the AB would be certainly have guidelines and the question Really is how much of the background what were they on notice of they talked to the family? They had some information from the mother Sherry Mitchell before she Decided to stop cooperating they talked to Bobby Mitchell. They talked to George Mitchell None of these new allegations about maybe George Mitchell May have molested someone back in the early 80s was ever known to anybody that they contacted it was not brought to their attention And the question really is if Mitchell himself is not telling his council

. Hey, I was molested he's not telling very often fail. He's not telling Dr. Merence I was molested But you can't on the penalty face the council can't stop there, right? But it just his word. I mean there was a whole host of people that they could have interviewed and found conflicting information to that which was portrayed in the penalty phase You wonder they they did not just take his word for it They did take a look as They did the they went to the crime scene and they looked at there for evidence, right? He went to you're on a there are several crime scenes. There was the well I'm talking about the the scene of the murder Well, they were at that scene twice

. Okay, but did they did they interview any of the other people with whom he'd been residing during the past year? They attempted to interview Johnny Orson They actually brought him to trial and he took the fifth amendment. So obviously he cannot be interviewed The record they are not clear that they talked to the other defendants almost all of the others with the exclusion one person named Pedrian We're under indictment. There was a kind of a related car jacking case inviting involving Johnny Orson You're and then the guys about two months earlier and these cases were we're tracking in parallel in fact by the time of this trial Gregory Nakai and Johnny Orson had been convicted in the first case Jimmy Nakai testified against his brother and played guilty Jay Greenekai had played guilty So all these people were represented by councilman at various stages of criminal proceeding Well, see it's it's a little difficult to judge based on what I've seen so far. I mean possibly With complete reading the transcript and the record it would become clearer But is that really the guidelines? and I think They were no one or should have been known to a defense council trying a capital defense case It requires a really more extensive inquiry Into the whole family circumstances not only what happened to him what he what he was exposed to What he saw they even chuck him a guy done it's about You know natural disasters. I don't know why I don't think it has anything to do with This case, but I mean, it's a very extensive investigation That's required before you execute someone the I've a question partly based on my lack of Knowledge as to the timing as to when they decided that the You know good guy defense is a viable Defense in mitigation in a case like this. I mean we have cases like Karel Would say that this is not the kind of a case with this kind of brutality In which you would try a good guy defense unless You know everything else is You know out of the question once you've made an extensive investigation Well, how much of the investigation did they do or how much did they not do because they thought good guy defense It's the right defense in this case At some point they made that decision I guess we're going to say that this guy was such a wonderful student that the fact that he did what he did should be ignored That's a pretty tough you can make that decision But that's a pretty tough defense to justify even the facts of the case and that's what what Karel certainly says George, I know that we we've gotten into this it was a life worth saving good guy defense But I think it's a little larger than that. They were trying to show that this was at best an ad Bernat And you ask when they may have made this decision. I point out to the court that miss Aachenfeld's report was prepared Was written up about November of 2002 the trial began in April 2003 They sent him to see Dr. Morins for the latter part of 2002 and early 2003 and got nothing that they could possibly use That trial I mean an anti-social personality disorder diagnosis Shooting a girl during a drug deal fighting with people Just was just not the kind of evidence as they talk about they were looking for some nugget to explain why Mitchell did what he did Unfortunately, I think it was the anti-social personality disorder is what caused him to do what he did So they tried to blame or singer they tried to show that there was a disparity between or singer not eligible for the death of Gregory Nikai not eligible for the death Yeah, that's different from you know what you sometimes do after trial. You see some things that don't work during trial The after trial you look differently for what you want You're trying to get him declared innocent you're trying to say what is it about this person They might make a jury one jury at least sympathetic and Nothing about the facts of this crime we're gonna make any jurors sympathetic or anything but hostile The and nor is it this is such a guy good guy that we ought to keep him alive He doesn't seem to be such a good guy It seems to be just the opposite and what you would try to do I'm sure if he were the defense counsel Would be you try to say now what kind of an upbringing did he have what was it just a life like it is grandfather's house And from reading some of the affidavits that they they now submitted It seems you could have found not you I mean the defense counsel could have found or the investigators Could have found a lot about his life that might makes one jury say my god It's it's you know it's surprising

. I mean we have cases like Karel Would say that this is not the kind of a case with this kind of brutality In which you would try a good guy defense unless You know everything else is You know out of the question once you've made an extensive investigation Well, how much of the investigation did they do or how much did they not do because they thought good guy defense It's the right defense in this case At some point they made that decision I guess we're going to say that this guy was such a wonderful student that the fact that he did what he did should be ignored That's a pretty tough you can make that decision But that's a pretty tough defense to justify even the facts of the case and that's what what Karel certainly says George, I know that we we've gotten into this it was a life worth saving good guy defense But I think it's a little larger than that. They were trying to show that this was at best an ad Bernat And you ask when they may have made this decision. I point out to the court that miss Aachenfeld's report was prepared Was written up about November of 2002 the trial began in April 2003 They sent him to see Dr. Morins for the latter part of 2002 and early 2003 and got nothing that they could possibly use That trial I mean an anti-social personality disorder diagnosis Shooting a girl during a drug deal fighting with people Just was just not the kind of evidence as they talk about they were looking for some nugget to explain why Mitchell did what he did Unfortunately, I think it was the anti-social personality disorder is what caused him to do what he did So they tried to blame or singer they tried to show that there was a disparity between or singer not eligible for the death of Gregory Nikai not eligible for the death Yeah, that's different from you know what you sometimes do after trial. You see some things that don't work during trial The after trial you look differently for what you want You're trying to get him declared innocent you're trying to say what is it about this person They might make a jury one jury at least sympathetic and Nothing about the facts of this crime we're gonna make any jurors sympathetic or anything but hostile The and nor is it this is such a guy good guy that we ought to keep him alive He doesn't seem to be such a good guy It seems to be just the opposite and what you would try to do I'm sure if he were the defense counsel Would be you try to say now what kind of an upbringing did he have what was it just a life like it is grandfather's house And from reading some of the affidavits that they they now submitted It seems you could have found not you I mean the defense counsel could have found or the investigators Could have found a lot about his life that might makes one jury say my god It's it's you know it's surprising. He didn't kill 20 people After that kind of an upbringing and that kind of a family the whole thing seems the kind of the whole system seems kind of ironic that You have to prove how terrible and then how on they socially is to mitigate a sentence but That's where it is The kids kids who long says correctly that there are tactical decisions That a lawyer has to make you know a lawyer has to say Do I have a better chance of convincing somebody That this is the life for its saving or that this guy has had such a horrible upbringing that he's turned into a terrible person But you can't do both you better pick one of the other and generally the courts give a lot of leeway To the counsel who makes a tactical decision But before he does that The guidelines and I'm not saying you can argue the guidelines don't control the courts At least one justice has made that argument But if the court would have followed the guidelines and this is the first Capital case I've seen that would be applying the 2003 guidelines The kind of investigation that you would have to make in order to make that decision sounds to me like somewhat more extensive than this investigation You're on a you You could look at the at the allegation you look What you just described is terrible upbringing was known to counsel This often feels report is replete with evidence of all sorts of things going on discipline school mother not in attendance grandfather distance grandmother abusive was there any evidence that defense counsel discovered the allegations of child malastation by the Grandfather or the possibility that the grandfather was actually his father during your penalty phase investigation the record does not contain that information. I do not think it was brought up during the deposition So that's now in the habeas record Why doesn't that Raise something that for which are in evidentiary hearing should have been held because if that that was true and it was missed That's a big chunk of evidence to miss Your honor the is is the district court found on some of this Would it have changed what they decided to do? It is it is it all mitigations is a double-edged sword You can sit here and counsel may come in and say present the abused child But there are cases on the record where they forewent the abused child and because there were going to be other things that came out as a part of that And this record has all sorts of mine fields for defense counsel and they knew it You put on the abuse of family who are you going to call for the abuse of family? You're going to put them other on Okay, but my question slightly different because I'm looking at the evidentiary hearing Standard And it says unless the motion the files and records of the case conclusively show That the prisoner is entitled to know relief and I guess I'm wondering if Dejankhia properly applied that standard in declining the evidentiary hearing when there's this new evidence and somehow it needs to be Wait or I mean, I mean, I think it's somewhat important to know whether that is true And what effect might have had? I mean, I'm gonna notice this when is this grant? Jill grant to prompt hearing And determine the issues and the findings of fact Seems to me that's an evidentiary hearing that's not and hearing where you just have argument It's Dutch is requiring an evidentiary hearing where you make findings of fact and that is troubles me somewhat that That was not done here with with this new evidence Your honor my answer to that is that this was not just an unargument. We've deposed all three attorneys The government opposed can't and habeas counsel to post Those are not addressed during the deposition It's your your across security. You've done lots of trials. Do you know that a witness's credibility and demeanor make a lot of difference when you're when you're making factual findings And I also am aware that all three counsel appeared Before the district court judge for a very long period of time in this case there were evidentiary motions There was a jury selection the trial that's not like the judge had no concept of who this person was And you know, can I trust their judgment? She had the opportunity to observe them over the course of about a year and a half in preparation for the trial So she had enough of a record You know so look I think the question for the court is Whether you know everything there is to know with that molestation if proven true Have changed which which molestation we're talking about I've lost track of this There's no evidence is there that George molested Lesmond I my recollection of the record is that there is none that this is more a George allegedly molested some other kids Okay, but not not I just want to make sure I'm good but not not the defendant there was nothing Anybody's discussion up Prior to the trial even now in these habeas proceedings as I understand that there is nothing that alleges That George ever molested Mitchell What are what do you make of mischims suggestion that there is a A factual dispute about what counsel strategy was One thought it was going to be a another thought it was going to be be and the left hand didn't know what the right hand was doing Your Honor, I think what is is that the strategy In the depositions counsel the strategy came out essentially the way they wanted it to do They wanted the Abernac the life or lay preserving the Navajo nation letter That there's no there's no discussion here what went wrong There's no allegation of well this clearly went way off the track As to what we were going to present all fit in led to a cohesive closing argument in my counsel Seeking any number of reasons for a juror Whether it be mercy And let let's remember the trial jury the sentencing jury found three mitigating factors by by unanimity Including the fact that someone else Similarly situated was not facing the death penalty and yet the jury found that This course of conduct and it's a course of conduct It's not just somebody lost control and somebody's dead there was a plan The plan was carried out two people died they come back the next day They behead be hand be hand them strip them of clothing and leave them And two days later take the one-sub truck and come in an armor-obbery at gunpoint

. He didn't kill 20 people After that kind of an upbringing and that kind of a family the whole thing seems the kind of the whole system seems kind of ironic that You have to prove how terrible and then how on they socially is to mitigate a sentence but That's where it is The kids kids who long says correctly that there are tactical decisions That a lawyer has to make you know a lawyer has to say Do I have a better chance of convincing somebody That this is the life for its saving or that this guy has had such a horrible upbringing that he's turned into a terrible person But you can't do both you better pick one of the other and generally the courts give a lot of leeway To the counsel who makes a tactical decision But before he does that The guidelines and I'm not saying you can argue the guidelines don't control the courts At least one justice has made that argument But if the court would have followed the guidelines and this is the first Capital case I've seen that would be applying the 2003 guidelines The kind of investigation that you would have to make in order to make that decision sounds to me like somewhat more extensive than this investigation You're on a you You could look at the at the allegation you look What you just described is terrible upbringing was known to counsel This often feels report is replete with evidence of all sorts of things going on discipline school mother not in attendance grandfather distance grandmother abusive was there any evidence that defense counsel discovered the allegations of child malastation by the Grandfather or the possibility that the grandfather was actually his father during your penalty phase investigation the record does not contain that information. I do not think it was brought up during the deposition So that's now in the habeas record Why doesn't that Raise something that for which are in evidentiary hearing should have been held because if that that was true and it was missed That's a big chunk of evidence to miss Your honor the is is the district court found on some of this Would it have changed what they decided to do? It is it is it all mitigations is a double-edged sword You can sit here and counsel may come in and say present the abused child But there are cases on the record where they forewent the abused child and because there were going to be other things that came out as a part of that And this record has all sorts of mine fields for defense counsel and they knew it You put on the abuse of family who are you going to call for the abuse of family? You're going to put them other on Okay, but my question slightly different because I'm looking at the evidentiary hearing Standard And it says unless the motion the files and records of the case conclusively show That the prisoner is entitled to know relief and I guess I'm wondering if Dejankhia properly applied that standard in declining the evidentiary hearing when there's this new evidence and somehow it needs to be Wait or I mean, I mean, I think it's somewhat important to know whether that is true And what effect might have had? I mean, I'm gonna notice this when is this grant? Jill grant to prompt hearing And determine the issues and the findings of fact Seems to me that's an evidentiary hearing that's not and hearing where you just have argument It's Dutch is requiring an evidentiary hearing where you make findings of fact and that is troubles me somewhat that That was not done here with with this new evidence Your honor my answer to that is that this was not just an unargument. We've deposed all three attorneys The government opposed can't and habeas counsel to post Those are not addressed during the deposition It's your your across security. You've done lots of trials. Do you know that a witness's credibility and demeanor make a lot of difference when you're when you're making factual findings And I also am aware that all three counsel appeared Before the district court judge for a very long period of time in this case there were evidentiary motions There was a jury selection the trial that's not like the judge had no concept of who this person was And you know, can I trust their judgment? She had the opportunity to observe them over the course of about a year and a half in preparation for the trial So she had enough of a record You know so look I think the question for the court is Whether you know everything there is to know with that molestation if proven true Have changed which which molestation we're talking about I've lost track of this There's no evidence is there that George molested Lesmond I my recollection of the record is that there is none that this is more a George allegedly molested some other kids Okay, but not not I just want to make sure I'm good but not not the defendant there was nothing Anybody's discussion up Prior to the trial even now in these habeas proceedings as I understand that there is nothing that alleges That George ever molested Mitchell What are what do you make of mischims suggestion that there is a A factual dispute about what counsel strategy was One thought it was going to be a another thought it was going to be be and the left hand didn't know what the right hand was doing Your Honor, I think what is is that the strategy In the depositions counsel the strategy came out essentially the way they wanted it to do They wanted the Abernac the life or lay preserving the Navajo nation letter That there's no there's no discussion here what went wrong There's no allegation of well this clearly went way off the track As to what we were going to present all fit in led to a cohesive closing argument in my counsel Seeking any number of reasons for a juror Whether it be mercy And let let's remember the trial jury the sentencing jury found three mitigating factors by by unanimity Including the fact that someone else Similarly situated was not facing the death penalty and yet the jury found that This course of conduct and it's a course of conduct It's not just somebody lost control and somebody's dead there was a plan The plan was carried out two people died they come back the next day They behead be hand be hand them strip them of clothing and leave them And two days later take the one-sub truck and come in an armor-obbery at gunpoint. There's that is to be this as a her Rectic crime and so the question is to how does a Abuse of and in the court knows you have seen very abusive upbringings He had some abuse. There's no question, but this pales in comparison to an off plot of the stuff that has been presented on behalf of the defendant's and capital cases I think that you know he was you know beaten by his mother till he was in sixth grade Not a great thing but no allegations of beatings after sixth grade So the question is again Who do you who do you call to prove all this stuff and what happens when you go to the experts? Under rule 12.2 if they're going to go diminish capacity the government has an Opportunity to have the defendant examined For the experts going to testify as reports have to be disclosed So the government's going to find out things that the defense in this case did not want because every one of the experts had very bad things But the defense council did not want the jurors to hear they already heard enough There was no need to pile on and so the the strategic decision was tried to focus away and say He is not an irreparable monster He has some capacity to do some kind of good for the rest of his life in prison The other evidence substance abuse Lifestyle choice is that going to cause a jury to say I Think that's an excuse here because you chose to do meth and ecstasy and Yeah, I think you're making good arguing for not choosing The strategy that was chosen But that kind of a horrific crime What what strategy do I choose? Well, you got to choose this strategy of trying to show that he's what he is Uh, because of his his horrific upbringing Uh, and that he shouldn't be blamed for what he is Uh, entirely if that's not a guaranteed winner. It's not a good. No, so I mean you have to kind of Uh Make a judgment call

. There's that is to be this as a her Rectic crime and so the question is to how does a Abuse of and in the court knows you have seen very abusive upbringings He had some abuse. There's no question, but this pales in comparison to an off plot of the stuff that has been presented on behalf of the defendant's and capital cases I think that you know he was you know beaten by his mother till he was in sixth grade Not a great thing but no allegations of beatings after sixth grade So the question is again Who do you who do you call to prove all this stuff and what happens when you go to the experts? Under rule 12.2 if they're going to go diminish capacity the government has an Opportunity to have the defendant examined For the experts going to testify as reports have to be disclosed So the government's going to find out things that the defense in this case did not want because every one of the experts had very bad things But the defense council did not want the jurors to hear they already heard enough There was no need to pile on and so the the strategic decision was tried to focus away and say He is not an irreparable monster He has some capacity to do some kind of good for the rest of his life in prison The other evidence substance abuse Lifestyle choice is that going to cause a jury to say I Think that's an excuse here because you chose to do meth and ecstasy and Yeah, I think you're making good arguing for not choosing The strategy that was chosen But that kind of a horrific crime What what strategy do I choose? Well, you got to choose this strategy of trying to show that he's what he is Uh, because of his his horrific upbringing Uh, and that he shouldn't be blamed for what he is Uh, entirely if that's not a guaranteed winner. It's not a good. No, so I mean you have to kind of Uh Make a judgment call. What do you think will work with a given jury in a given case? You're not on if I if I might point you back to what council seers said that he had noticed in his trials after 9-11 the jurors were less sympathetic to excuses if you if you would For committing horrific crimes and yes, Judge We can sit here until the end of the day and discuss the very benefits of he was molested. Well that excuse what he did That's why you need a total investigation and that's one of the questions I mean did was it the kind of investigation that compiled with the rules And when did they decide not to make that total investigation? If if they did You know what you look for it before a trial is a different result. You're trying to get him acquitted Uh When he's convicted and you look for something you're looking for something different You're trying to prove our body is that's not a trial strategy. That's that's a A sentencing strategy and that's why I think you have to keep the two things somewhat separate and that's why the the timing of what are you looking for? It is is significant and it's different. You're looking for something different If that and thing when you're looking for a trial You're on I would submit that and I think Mr

. What do you think will work with a given jury in a given case? You're not on if I if I might point you back to what council seers said that he had noticed in his trials after 9-11 the jurors were less sympathetic to excuses if you if you would For committing horrific crimes and yes, Judge We can sit here until the end of the day and discuss the very benefits of he was molested. Well that excuse what he did That's why you need a total investigation and that's one of the questions I mean did was it the kind of investigation that compiled with the rules And when did they decide not to make that total investigation? If if they did You know what you look for it before a trial is a different result. You're trying to get him acquitted Uh When he's convicted and you look for something you're looking for something different You're trying to prove our body is that's not a trial strategy. That's that's a A sentencing strategy and that's why I think you have to keep the two things somewhat separate and that's why the the timing of what are you looking for? It is is significant and it's different. You're looking for something different If that and thing when you're looking for a trial You're on I would submit that and I think Mr. Williams and his deposition made it very clear They really didn't have much to work with for trial what they did was all directed towards sentencing And as I can only point out to the court that misoccuple interviewed an awful lot of people counsel interviewed people The people who would have at that point had knowledge of what what may have happened to Mr. George in the past weren't weren't forthcoming there was no red flag there was no allegation From the family or for anybody else that they could talk to that said you need to go check out George Mitchell most people said George Mitchell was a great cultural Individual for the for the Navajo Nation out The investigation suggested there were some plummishes on that record as well but I all I can offer to the court is that It's as Judge Silverman says it's none of these were sure fire winners and what would have been the downside of doing He was a good student. He was an athlete. He was the valedictorian. He was all these other things and He had a horrible upbringing

. Williams and his deposition made it very clear They really didn't have much to work with for trial what they did was all directed towards sentencing And as I can only point out to the court that misoccuple interviewed an awful lot of people counsel interviewed people The people who would have at that point had knowledge of what what may have happened to Mr. George in the past weren't weren't forthcoming there was no red flag there was no allegation From the family or for anybody else that they could talk to that said you need to go check out George Mitchell most people said George Mitchell was a great cultural Individual for the for the Navajo Nation out The investigation suggested there were some plummishes on that record as well but I all I can offer to the court is that It's as Judge Silverman says it's none of these were sure fire winners and what would have been the downside of doing He was a good student. He was an athlete. He was the valedictorian. He was all these other things and He had a horrible upbringing. I think what counsel was concerned about is Again, who's going to bring in the disrupted Nate You know they brought in Bobby Mitchell and you heard her basically barely talk all about herself for 29 minutes of 30 minute. I saw that videotape and I didn't see how it was helpful at all and the and But they made I mean to judge word loss point. They didn't they then argue look at look at who his grandmother was look at that That was the point of that. She's our piece. I think they said she's a piece of crap if I'm not mistaken I think it helped it's certainly help with their argument that he had Not the worst or not the best upbringing in terms of reservation cases So would you suggest there and they Harkens back to when the Proplexing things that I found about the closing argument was that they were arguing they were It were they're arguing about I think they were trying to throw in both things But they didn't throw in the negative to the extent they could have to make it more persuasive or maybe generate more sympathy And it was that because they didn't thoroughly investigate it or was that for a strategic reason Your honor they if you look at the The witness testimony It touched on the cold childhood and some of the things that were not But they trying to they were trying to just give a sample to the jury They didn't want to dwell on any one thing because none of that was going to win It was true

. I think what counsel was concerned about is Again, who's going to bring in the disrupted Nate You know they brought in Bobby Mitchell and you heard her basically barely talk all about herself for 29 minutes of 30 minute. I saw that videotape and I didn't see how it was helpful at all and the and But they made I mean to judge word loss point. They didn't they then argue look at look at who his grandmother was look at that That was the point of that. She's our piece. I think they said she's a piece of crap if I'm not mistaken I think it helped it's certainly help with their argument that he had Not the worst or not the best upbringing in terms of reservation cases So would you suggest there and they Harkens back to when the Proplexing things that I found about the closing argument was that they were arguing they were It were they're arguing about I think they were trying to throw in both things But they didn't throw in the negative to the extent they could have to make it more persuasive or maybe generate more sympathy And it was that because they didn't thoroughly investigate it or was that for a strategic reason Your honor they if you look at the The witness testimony It touched on the cold childhood and some of the things that were not But they trying to they were trying to just give a sample to the jury They didn't want to dwell on any one thing because none of that was going to win It was true. They basically was here is the whole picture He had somewhat of a deprived childhood, but he turned out to be a good student He turned out to be good athlete and a leader And he got hooked hooked up with this this crazy Johnny Orsinger who had killed before and probably killed on this occasion And it's not fair that he the role of these carjackers Because they brought in the evidence of the other carjackings and what happened in that the burned bodies and shots to the head That it was not fair that Leso Mitchell was facing death penalty when Gregory Nicae was not Nor was Johnny Orsinger now Johnny was by function of his age, but Gregory Nicae's was by the Decision of the attorney general. Do you do you think that it's fair? I mean do I as a as a prosecutor we don't do fair or just I'm just curious because I we know that Do I think we know the prosecutor which I see you were part of this decision did not recommend the death penalty You wanted that is really not in the record that I believe it's in it's in your record Out in terms of the actual record. I believe that came from Some notoriety when the US attorney at that time Was fired and there were hearings in Washington and some of that evidence came out But that's not in the trial record Because the only decision Well, you're on the other word and that's what he is right? I feel constrained by the record I presume I understand the rules generally the you know the protocols established by the attorney general are not discoverable and it's not what I'm trying to I understand what I'm saying Was there testimony to that effect before Congress I guess that In Charlton's so testified I can't tell if it was in front of Congress or the newspapers But there was a lot of notoriety after the firings of I think it was eight U.S attorneys Um Any other question to me is do I think it was fair? Hmm that Mr. Mitchell faced while Yes, but possibly someone who was more culpable didn't You know, I'm not sure that's a fair question to ask counsel to be honest with you I mean you're not supposed to argue your personal belief in the case or anything I'm asking him because of the possibility of you know, I'm Wondering whether as you go ahead and whether I Think one reason Lord Lord like being inquiring into that is There is a possibility after the argument and after we confer about it as That we might refer the case to our mediation unit which has surprisingly settled the capital punishment case among our record of very successful settlement discussions I think I was trying to explore whether The government Ultimately and I don't I don't think she expects you to provide an answer today But that the guard whether the government would willingly participate in those discussions if we were to refer it after we hear the argument and after we discuss it with We wouldn't want you to be surprised if that's one of the options open to us and I think one of the considerations George Wardler I have in mind Is whether the how the government might feel about the checkered history the case had and and the record which or one of us discovered I'll Of the government's history in in capital cases since 19 whatever it was 60 when Which was I think the last Exication prior to the renewal starting with Timothy McVey and two others That it might be the government would be willing to at least discuss With mediator whether there was any possibility of instance of referring this to the attorney general or For his view or whatever We don't like to spring the mediation or whatever at anyone and so I think she wanted to Yes, I'm sure But I said that since we had talked about it before the hearing and Judge Reinhardt was when it was supposed to bring it up I didn't want to bring that particular thing up So it's asking the question in my own way judge Do you see any downside to this mediation? Let me cut to the chase Your honor can I duck that question by saying that comes from above my pay grade? Can you check with your pay to people above you? Well, I should get an order

. They basically was here is the whole picture He had somewhat of a deprived childhood, but he turned out to be a good student He turned out to be good athlete and a leader And he got hooked hooked up with this this crazy Johnny Orsinger who had killed before and probably killed on this occasion And it's not fair that he the role of these carjackers Because they brought in the evidence of the other carjackings and what happened in that the burned bodies and shots to the head That it was not fair that Leso Mitchell was facing death penalty when Gregory Nicae was not Nor was Johnny Orsinger now Johnny was by function of his age, but Gregory Nicae's was by the Decision of the attorney general. Do you do you think that it's fair? I mean do I as a as a prosecutor we don't do fair or just I'm just curious because I we know that Do I think we know the prosecutor which I see you were part of this decision did not recommend the death penalty You wanted that is really not in the record that I believe it's in it's in your record Out in terms of the actual record. I believe that came from Some notoriety when the US attorney at that time Was fired and there were hearings in Washington and some of that evidence came out But that's not in the trial record Because the only decision Well, you're on the other word and that's what he is right? I feel constrained by the record I presume I understand the rules generally the you know the protocols established by the attorney general are not discoverable and it's not what I'm trying to I understand what I'm saying Was there testimony to that effect before Congress I guess that In Charlton's so testified I can't tell if it was in front of Congress or the newspapers But there was a lot of notoriety after the firings of I think it was eight U.S attorneys Um Any other question to me is do I think it was fair? Hmm that Mr. Mitchell faced while Yes, but possibly someone who was more culpable didn't You know, I'm not sure that's a fair question to ask counsel to be honest with you I mean you're not supposed to argue your personal belief in the case or anything I'm asking him because of the possibility of you know, I'm Wondering whether as you go ahead and whether I Think one reason Lord Lord like being inquiring into that is There is a possibility after the argument and after we confer about it as That we might refer the case to our mediation unit which has surprisingly settled the capital punishment case among our record of very successful settlement discussions I think I was trying to explore whether The government Ultimately and I don't I don't think she expects you to provide an answer today But that the guard whether the government would willingly participate in those discussions if we were to refer it after we hear the argument and after we discuss it with We wouldn't want you to be surprised if that's one of the options open to us and I think one of the considerations George Wardler I have in mind Is whether the how the government might feel about the checkered history the case had and and the record which or one of us discovered I'll Of the government's history in in capital cases since 19 whatever it was 60 when Which was I think the last Exication prior to the renewal starting with Timothy McVey and two others That it might be the government would be willing to at least discuss With mediator whether there was any possibility of instance of referring this to the attorney general or For his view or whatever We don't like to spring the mediation or whatever at anyone and so I think she wanted to Yes, I'm sure But I said that since we had talked about it before the hearing and Judge Reinhardt was when it was supposed to bring it up I didn't want to bring that particular thing up So it's asking the question in my own way judge Do you see any downside to this mediation? Let me cut to the chase Your honor can I duck that question by saying that comes from above my pay grade? Can you check with your pay to people above you? Well, I should get an order. I assume you will I mean if we issue a mission mediation, you know, that's why I didn't ask you I was going to ask at the end of the arguments about this but I wouldn't have asked you whether What what your reaction would be to that? I assume just what he said he'd say would be above your pay grade So I wasn't going to inquire as to how you felt but I was going to say that when you get an order that That you I assume would just check with your superiors Who would either say yes will come or No, we won't and I would be surprised if they said no, we won't Well judge, I will certainly pass on any communications All I will simply say is that I think this case Really rises and fall in large part on what counsel sears said it was a matter of Who was killed and how they were killed? And if there are no further questions, thank you very much. Thank you. Thank you Um to refer to the point about investigation of Mr. Mitchell's childhood The ABA guidelines but also pre-existing case law make clear that even if certain sources are for are not forthcoming And perhaps George Mitchell was not and perhaps Bobby Mitchell would not have been forthcoming about information that her husband was implicated in trial molestation that Counsel should seek alternative sources of information regarding the key players in a capital defendants life and here habeas counsel found By looking at the people around those key players that information regarding trial molestation multiple instances Also the best evidence you have on George tell me if I've got this right or wrong The worst thing you can say about George is that he molested the Was it the sister? perhaps this year In a cousin and a neighbor child there was an allegation Nothing regarding Mr. Mitchell There's nothing regarding Mr

. I assume you will I mean if we issue a mission mediation, you know, that's why I didn't ask you I was going to ask at the end of the arguments about this but I wouldn't have asked you whether What what your reaction would be to that? I assume just what he said he'd say would be above your pay grade So I wasn't going to inquire as to how you felt but I was going to say that when you get an order that That you I assume would just check with your superiors Who would either say yes will come or No, we won't and I would be surprised if they said no, we won't Well judge, I will certainly pass on any communications All I will simply say is that I think this case Really rises and fall in large part on what counsel sears said it was a matter of Who was killed and how they were killed? And if there are no further questions, thank you very much. Thank you. Thank you Um to refer to the point about investigation of Mr. Mitchell's childhood The ABA guidelines but also pre-existing case law make clear that even if certain sources are for are not forthcoming And perhaps George Mitchell was not and perhaps Bobby Mitchell would not have been forthcoming about information that her husband was implicated in trial molestation that Counsel should seek alternative sources of information regarding the key players in a capital defendants life and here habeas counsel found By looking at the people around those key players that information regarding trial molestation multiple instances Also the best evidence you have on George tell me if I've got this right or wrong The worst thing you can say about George is that he molested the Was it the sister? perhaps this year In a cousin and a neighbor child there was an allegation Nothing regarding Mr. Mitchell There's nothing regarding Mr. Mitchell but even apart from any direct impact on Mr. Mitchell It goes to the larger picture of his childhood we have Counsel had in the social history report that there were conflicts between the mother and grandmother I agree. I mean that's not a feather in George's cap that he's molesting other children but in terms of how it affects this case just so we all know what the facts are and I want to make sure I Oh, especially you understand You don't have any evidence you didn't present any evidence that he molested Lesmond Mitchell No, you're honor. There's no direct evidence of that well Or circumstantial evidence of it You're not saying he did But what you're talking about I assume is that the supposed to investigate the family history I'm not only of abuse of the individual but the circumstances in which he lived such its family instability Even neighborhood environment Other traumatic is exposure to criminal conduct I mean that's those were all different factors from being a victim of molestation And you're I assume Referring to the question of exploring those other issues not exploring any molestation of the defendant yes your honor for instance in the Hamilton case There was evidence of incest in the household Not directly relating to the defendant in that case But to present a picture of the family Clear that we're not talking about the molestation of the defendant What I'm trying to also do is figure out what what a hearing would accomplish It came to judge mergie as attention that George had molested Had the people's names Mary was it Mary Reed and Marvina how do you say it draws Well, you know whoever they were that came to judge mergie as attention That fact is already in front of her before it was before her And she concluded basically that that wouldn't have Made any any difference I gather is that was that right She because because Mitchell himself wasn't the the victim She didn't rule on prejudice prejudice grounds but Since those two inquiries are related she Found that council was not ineffective However, this because why She felt that the social history that they had done was sufficient Okay, so at least they're reasonable not to go further So at least I stood this point. There's no reason for a hearing because we We've established we've taken as a given that that George molested these two people as to this point Yes, Your Honor if you take all of that is true if the government is not contesting that information the judge took it is basically true and say well they did other things She but again this was based on the pre-supposition that they had inducted a reasonable investigation up to that point As the Supreme Court said in Sears the upton you know a tactical decision Is a precursor to any reasonable strategies so to say that it was reasonable not to pursue that further Okay, that's a different question

. See that's a legal conclusion But the fact that these two girls were molested by George Was it has already been has already been established you don't have to prove it again If If this court will take that is true and the government would concede that then well the judge said that wouldn't make any difference I know about it and it wouldn't make any difference Now she may be wrong about that, but I mean you don't need to go back and tell her again I mean there are instances perhaps in that instance a hearing would not be required on that Soul single point however, that's why I've been trying to pin you down on exactly what we need a hearing on I think I've got you down as saying The lawyers were at Were at sixes and sevens and we want to ask them of that kind of thing Beyond that I'm not getting a clear picture of what would need to be established at a hearing I mean that's at the root that question is at the root You know what they decided and again when they made these decisions because That invest you know everything flows from that initial investigation and You know where they decided to curtail that investigation and the reasons for doing so and I wanted to know did they curtail investigation? When did they decide to curtail investigation? How much investigation had been done At the time they decided to go for one option rather than the other if they made that decision I'm not clear so far And it may be clear as I say it may be sufficiently clear already But it has to judge Civil man has accurately described your position That's what it seems to me Comes down to at a hearing unless this has been Explored sufficiently Can we pin this down to whether they elected one option or the other Or if they didn't elected did it did it affect the scope of the investigation into the bad guy rather than good guy option Did did that affect the investigation where did it cut it off? Did they treat the second option fully and conduct a full investigation of the second option and if not when was that decision made is Is that something you intend to presently through the hearing or has that been sufficiently explored to make a decision on those questions Your honor based on something George Werdall said earlier They did try to bring up this terrible childhood social history You know elements of the bad guy bad stuff how he became a bad guy At the penalty phase so until then there was no reason for them to have curtailed that investigation up until that point so To the extent that they said that yes, we did earlier we did abandon that earlier There is this efficient conflict with the record You know the cold record that that requires a hearing to explore Okay, thank you and To respond to your honors point about mediation mr. Mitchell would Welcome and participate in such radiation So it might correct the he so he sent Sentence to capital punishment on the card jacking count yes only yes, okay, and then aside from that it's two life sentences plus To be 184 months Yes The card jacking count is the capital Count in this case because The not only nation is not up to the Thank you Council thank you book did you hear that I would have you would mind if I could just ask one one other thing of judge of Mr. Kirby just I just want to make make sure I don't see any reason not to ask You to ask your higher-ups about mediation. Do you see any reason why we shouldn't ask you to do that? Uh, I don't know if any reason why anyone asked a question no harm in asking Okay, all right But just to sort of prepare you in advance and that's one of the options That so you don't just receive something in the mail and say what happened here? I'm certainly prepared now as to whether my upper management is will will work on it Thank you Miss Kim. Thank you Case just argued will be submitted. Thank you both for your argument