Transcript of Oral Arguments.

On Dec 2nd, lawyers argued about whether or not some judges should say it's okay to kill Keith LaMar. We've posted the audio of the arguments, as well as analysis of some experts and non-experts, and Keith's thoughts on the subject.

Now, thanks to prisoner support crews across the country (shout out to Austin ABC, Tucson ABC, Bloomington ABC and Sacramento Prisoner Support) we've got a full transcript of the argument so you can read the desperate weakness of the state's argument for yourself.

Also, this is probably full of misspelled case names. If you know case law better than us and can help correct and maybe even reference the appropriate cases, we'll gladly update and improve it.

AND we may have mixed up which justice said what. Old white guys all sound the same. Sorry. Again, if you think we've got something wrong, email insurgent.ben@gmail.com and i'll fix it.

Find it after the jump.

Keith LaMar Oral Arguments

CLERK: 113131113153 - Keith LaMar vs. Mark Hauk. Arguments not to exceed 30 minutes per side. Mr. Doughton for Appellant, cross Appellee.

DAUGHTON: Good afternoon, your Honor. I am David Doughton, along with Kate McGary, represent Keith LaMar. I would like to reserve six minutes for rebuttal.

JUSTICE CLAY: Very well.

DAUGHTON: The case is of course well aware of- it emanates out of the Lucasville Riots from back in April of 1993. In this case it’s important that Mr. LaMar was convicted of 5 homicides, but all the homicides were based entirely on inmate testimony. There was no physical evidence, no scientific evidence, no DNA, no films, nothing other than inmate testimony. There were 8 inmates that testified against Mr. LaMar. He testified. He had an additional 5 witnesses testify on his behalf. So this came entirely down to the issue of witness credibility.

The overriding error in this case is the Brady issue, which pervaded every aspect of the case - from the very beginning, from the very pre-trials. It started when the defense had requested discovery and requested Brady material and the- first the prosecutor refused to give it. Then, in order to protect witnesses that they came up with a mix and match game, where they had basically provided in sum, 43 names of witnesses and then 11 pages of statements but wouldn’t indicate for the defense if- which statements went with which defendants. The judge, in fact, went along with this. You know, the judge, in fact, suggested “Why don’t we throw some names in, like, ok this person didn’t say anything so we’ll throw his name in.” So we had a court approved discovery which they found complied with Brady and obviously we disagree.

The problem with this is and the position I think of the warden, is: well, they had eleven months to, you know- their investigator, excuse me they had three months, they had an investigator and three months, why don’t you go out and talk to these witnesses. The problem with that approach is we’re talking about inmates who were going to come out and provide statements against the prosecution, and also statements that would implicate other inmates. And understand that the homicides in the Lucasville case were based, basically upon the allegations that snitches were killed. So…

JUSTICE CLAY: How many of those individuals were still incarcerated, on the witness list that you were invited to interview?

DAUGHTON: Pardon me?

JUSTICE CLAY: The Brady material, the witnesses you were invited to, by the prosecutor and or the court to go and interview, how many of those people were still incarcerated at that time?

DAUGHTON: I…they were all incarcerated at that time. Some of them were in protective custody, some of them were not. And in fact, the prosecutor stated in the hearing on this that they had made promises to some of the inmates that they would protect them, if were going to be testifying. That in and of itself would be Brady. Because an inducement to get someone to testify, you know, “we’re going to protect you and we’ll give you…,” in fact they put them all in Oakwood Institution, would be something that should have been revealed. So we had a situation where it was impossible for defense council to be able to determine which statements went with which person.

JUSTICE KETHLEDGE: Well, of course the state says that the way you could have determined that, or the defense could have would have been to take up the court on its offer of investigative resources and to go in fact speak to the 72 witnesses.

DAUGHTON: That’s correct.

JUSTICE KETHLEDGE: Why do you think that was not feasible?

DAUGHTON: It wasn’t feasible because if you walk into, here, your defense council, or your investigator, and you said, “We would like you to testify on Mr. Lamar. Here’s a list of statements. Did you say any of these?” the idea that one of them was going to say, “Oh yes, I was the one that…”

JUSTICE KETHLEDGE: No, but I mean, why not just go have a fresh conversation with each of them and see what they have to say? I mean, at the end of the day you want to know what these 72 witnesses are going to testify to.

DAUGHTON: That’s correct. Well, there were hundreds and hundreds of witnesses.

JUSTICE KETHLEDGE: Well, at least the ones that the state has identified.

DAUGHTON: Well, two things…

JUSTICE KETHLEDGE: Why not just go to talk to them?

DAUGHTON: Well, two things. The burden for Brady is on the prosecution. They are under a constitutional obligation to provide the material for the defense. This isn’t a situation where you can switch the burden, where they’re saying, “Look there’s Brady stuff out here. And some of it was exculpatory. We’re not talking just favorable, but we’re talking exculpatory. Here’s names. Go find it.” That obviates the state from their need to provide it to the defense. You know, there’s no cases from the Supreme Court that allow this sort of thing. In fact, the Supreme Court has commented, we can’t approve it. So basically, under your hypothetical, you’re saying the state really doesn’t have to… and I know this is hypothetical…

JUSTICE KETHLEDGE: I guess, I’m not asking about the Brady doctrine, per se…

DAUGHTON: Sure.

JUSTICE KETHLEDGE: I’m asking as a practical matter, why would it have been so much harder for his investigators to talk with these people than it apparently was for the state to talk with them?

DAUGHTON: Two reasons. One, because they had nothing to offer. The witnesses who testified for the state, be it parole board, be it deals to lesser included... had reasons to talk. Second of all, the defense had nothing. Not only that, but if they did own up to a statement that was given, then you have a situation where they are putting themselves out as a snitch. They are living in the institution, testifying against somebody - not Mr. Lamar - and with nothing in exchange. And the odds…

JUSTICE CLAY: Your argument is a little bit troublesome in that if the people who gave the statements would have been reluctant to talk because they would be intimidated and placed in jeopardy and all that, it would seem that the same reluctance would apply to them if the state had given you the names and matched names with statements. If they wouldn’t submit to an interview with you it would seem that these people would not want to come into court and testify.

DAUGHTON: Well, what could have been done- whether they want to or not, they could have been subpoenaed to come into court. They could have been brought into court. They could have had a witness for the state set the ground work. “Yes I interviewed such and such a witness. Yes, I took a statement.” And even if the, what the person said would have been hearsay, they could have then confirmed with the person. “Look, this is the statement, did you give a statement on this day? Did you state this statement?” And so the defense would have then had the opportunity to develop it. And the other aspect of this, you know, they argued materiality, or lack of materiality. There is nothing more material than these statements. The reason being, the defense in this case was, “I wasn’t there. I was in the yard.” He had a couple of witnesses testify that- you know, “Through this period of time he checked in but I saw him for an hour and a half, in this period he was in the yard.” When you have witnesses saying, “I saw so and so kill Mr. Savetti” for example. And doesn’t mention Keith, the fact that he’s not identified as being there is the best corroborative evidence that you could have.

JUSTICE KETHLEDGE: Well, you don’t have a single witness among these 72 who say he was in the rec yard, right?

DAUGHTON: That’s in the record, that’s correct. Well, no. There was one. Yeah they had the one… I forget his name. The defense witness had one that said…

JUSTICE KETHLEDGE: Well I know there were a couple of witnesses at trial…

DAUGHTON: Sure. That’s right.

JUSTICE KETHLEDGE: …that so testified. But my understanding is that none of the witnesses who are the subject of your Brady claim were people who said, “I saw Mr. Lamar in the rec yard.”

DAUGHTON: That wasn’t part of the summaries, that’s correct.

JUSTICE KETHLEDGE: I guess, you know the concern I have with your argument regarding materiality is here we have a bunch of murders that undisputedly had multiple participants. And we have some of these people are saying he did participate. I know you’re focused on ones that said- that didn’t mention him. But you know, as…why isn’t the Ohio Supreme Court right when they say, “Look, you know… the fact that they mention some other participants doesn’t exclude by any means the possibility that he also was a participant.”

9 MINUTES

DAUGHTON: Because that's not Brady.

JUSTICE KETHLEDGE: It's consistent with your theory.

DAUGHTON: Because that's not Brady. What Brady is if there's favorable evidence that you're required to provide it to the defense so that the defense can use it if they choose to do so, and then it's a jury question.

JUSTICE KETHLEDGE: No. I'm talking about the materiality.

DAUGHTON: I'm talking about that because the issue is, was he there? Certainly if you have say, fifteen statements from people who identify other people as killing the victims and don't mention Keith not being present, then you have, clearly that's of great weight to the jury that backs up Keith's testimony. He was there, the prosecutor's free-

JUSTICE KETHLEDGE: This was a totally chaotic situation.

DAUGHTON: Sure it was-

JUSTICE KETHLEDGE: It's not like it was three people in a big empty room... why- I mean it seems like a stretch to say the state court was being unreasonable in the sense EDPA to understand these statements to be fragmentary descriptions of what happened and not necessarily recitations of who participated to the exclusion of Mr Lamar and I wanted to give you the chance to….

DAUGHTON: Sure, and here’s why it does.

JUSTICE KETHLEDGE:…explain why that’s wrong.

DAUGHTON: I’d be happy to if I could. I could read a quote from Kyle’s which I think fits perfectly and Kyle’s, they noted, that the reason why the prosecutor of anything should err on providing is because it will tend to preserve the criminal trial as distinct from the prosecutor’s private deliberations as the chosen form for ascertaining truth. In this case, what the Ohio Supreme Court allowed was for the prosecutor to make determinations of credibility and determinations on strength of evidence and based on the prosecutor’s belief on this then they didn’t have to comply with Brady; they didn’t have to turn it over. That’s where it goes right up against Kyle’s.

JUSTICE KETHLEDGE: I understand that you would be frustrated about that. I don’t blame you but I’m looking at a different part of Brady. Again, we have to make an assessment about whether we think the trial might have come out differently had he gotten these statements.

DAUGHTON: I would like to address that.

JUSTICE KETHLEDGE: That’s not about prosecutorial deliberation.

DAUGHTON: Sure, it’s whether we have confidence in the outcome.

JUSTICE KETHLEDGE: Right.

DAUGHTON: Which is the stuff and here’s the problem: the witnesses that did testify… one, the FBI planted a microphone in his head… one said “I couldn’t recognize Keith but I heard his voice.” One said he had a t-shirt pulled over his head and admitted that he didn’t mention Mr Lamar’s name but after the Ohio Patrol mentioned his name, he said, “Oh, yeah, that’s probably the guy.” So, you know, what we have here is hundreds of witnesses… that the State trooper has access to all these witnesses and they’re going through and we have generally the least credible witnesses that you would have in a criminal case and they’re all trying to cut deals for themselves, possibly. And through this, they get a thread that Mr Lamar is a key suspect. But based on Mr Bassett’s testimony, the trooper starts suggesting the name to them.

So what we have here is a situation where it’s all hearsay and it starts spreading. The troopers have complete access to them and based on the credibility of these witnesses alone, I’m not sure how much credibility or confidence he would have in their credibility alone. Then when you mix in that there were… and I’m not even talking about Federal discovery stuff… but then when you mix in that there were a number of witnesses talked to and summaries given in which they found other people killing the victims and don’t mention Mr Lamar, the Defense has every right to have access to this because the strength… and Giglio is a perfect example of this… the whole thing in Giglio is that when you have a situation where it’s based on the strength of the witnesses, it’s a different ball game than when we have a case where there’s physical evidence backing it up or DNA backing it up- scientific evidence backing it up. It’s a whole different standard.

So, in this case, the Defense had every right to bring in the witness and confront them. You know, isn’t it true that- he couls say- well, the Prosecution could cross-examine and say, “Well, that doesn’t mean he wasn’t there. He could have been somewhere where you couldn’t see…” Well, that’s fine and that’s the jury’s decision and the basis of Kyle- the key part of Kyle- is that it’s the jury. You can’t have the Prosecutor making credibility determinations, you know. Deciding what a witness says is ridiculous. I suppose that if you had a witness that said, “I saw Keith LaMar shoot or another person shoot this guy with a machine gun, you know, and it was a beating. Maybe that extreme, it might be proper but... but I doubt it. I think that the whole point of Brady is to make sure that all favorable, all impeaching, all exculpatory is given to the Defense in a manner that they can use and provide and present as they see fit. And in this case, it was the Prosecutor making determinations of what was credible and what wasn’t and that’s where the Ohio Supreme Court was incorrect and violated, frankly, Pregly and Bagley and a whole litany of cases… Giglio. And I don’t think we can have confidence in a verdict based upon this testimony alone. We know that other stuff is out there, which brings us to the Federal Discovery.

JUSTICE ROGERS: Which statements would have helped you the most?

DAUGHTON: I think the one most was Mr Kelley and I think he testified that one of the victims was killed by the Aryan Brotherhood. And it was revenge for somebody being a snitch against the Aryan Brotherhood. So we have a totally different motive. We have a totally different set of people which is credible because I don’t think there would be anybody that would dispute that there are gangs in prison and so Mr Kelley coming in and having no ax to grind and not putting anywhere would say “Look, this is what happened. This person I think was Diana was involved with something and the Aryan Brotherhood was involved in it.” So that in prison… life in prison… and I know that’s hard to imagine but we got a glimpse of it through this. There are all sorts of inside motivations going on, particularly with snitches.

So you have an alternative basis for a snitch and, unlike Mr LaMar, they said he’s killing them because of snitches but there’s no evidence that Mr LaMar was ever snitched on. There’s nothing that ties any of these alleged victims for snitching on anything that resulted in Keith suffering any consequences. In Mr Kelley’s testimony, there is! There’s a reason, there’s a purported statement and it gives them a basis of real motive, other than an imagined motive which happened here.

JUSTICE ROGERS: So it’s because someone else had a different motive? That’s what Kelley adds?

DAUGHTON: Yeah. Kelley adds that he was killed by different people because of snitching against the Aryan Brotherhood and the fact that there is no motive with Keith. In Keith’s case, he was there and they said, “Let’s get the snitches” but what Isn’t in the record and what wasn’t at trial is… what ever came out against Mr LaMar? When did anybody snitch against Mr LaMar? And there was nothing tied , there was no victim that had ever done anything to Mr LaMar that would give him motives to do this other than just the general snitching.

JUSTICE ROGERS: How did someone else having a motive indicate that?

DAUGHTON: Because it would show to the jury this wasn’t the Muslims deciding to have a riot and I think Mr Gordon said and therefore he tells Keith and Keith warns him, “Get a bunch of people to come in” and then out of the blue, he decides, “Well, I’m gonna take advantage of the Muslims having a riot and I’m gonna start willy-nilly killing snitches.” And there’s no evidence why he thought these people were snitches. I mean, there’s nothing in the record that these people were snitches. That’s the purported reasons given by these inmate witnesses but there’s nothing connecting their actions with Mr LaMar.

JUSTICE KETHLEDGE: How does Kelly’s statement undermine that?

DAUGHTON: Oh, Kelly’s? Because it gives a viable motive as to why at least one of these people would have been killed for a specific reason. Not just the general…

JUSTICE KETHLEDGE: The fact that there is a specific reason undermines the lack of the… I guess I’m not following the logic.

DAUGHTON: Well, sure it does. If there’s someone other than Mr LaMar that had a reason to kill the person? I’d think that’s absolutely exculpatory or at least favorable in this case. And again…

JUSTICE KETHLEDGE: It doesn’t only have to be exculpatory, it has to be not harmless, correct?

DAUGHTON: Well, that’s correct and the materiality is huge in this case. Again, we have the Giglio standard of you have somebody who it’s based entirely upon inmate credibility. There’s nothing else that ties Keith to the case. And I see that I’m out of time.

JUSTICE CLAY: Just to reiterate, when you were denied the Brady material, roughly as you say, what did the Defense do to avail itself of the Brady material by way of investigation, interviews, or really any efforts, whatsoever? Did you do anything?

DAUGHTON: Once it was discovered; it wasn’t discovered who said what until the subsequent trial. Mr Matthews and Mr Cannon were tried afterwards and in that case, obviously, the Prosector had second thoughts about the procedure and he did tie up the statements with a particular person. When they found out, they filed two new trial motions, you know, saying, “Look. This is what we would’ve done” and then they kept trickling stuff in. They were supplementing their new trial motion through the trial and they filed a second new trial motion, in which they said “here’s what we would’ve done.” They didn’t do anything at trial because obviously they didn’t have the person who had made the favorable statement.

JUSTICE CLAY: So at some point the statements and the individual names were…

DAUGHTON: Yes, yes.

JUSTICE CLAY: …when did you say that occurred?

20 MINUTES

DAUGHTON: After Mr Lamar’s trial, there were two other people tried for the killings: Mr Matthews and Mr Cannon. In the pretrial motions for those trials, they did tie up the names of the declarant with what was said and when Counsel for LaMar discovered this, they immediately filed for a new trial motion and then they found out other information as it came on and they filed for a second trial motion which was denied in State Court but in the new trial motions….

JUSTICE CLAY: So at some point the statements

Daughton: Yes

JUSTICE CLAY: and the individual names were-

DAUGHTON: Yes

JUSTICE CLAY: When did you say that occurred?

DAUGHTON: After Mr. Lamar's trial, there were two other people tried for the same killings: Mr. Matthews and Mr. Cannon. In the pre-trial motions for those trials, they did tie up the names of the declarant with what was said. And when counsel for Lamar discovered this, they immediately filed for a new trial motion. And then they found out other information as it came on and they filed for a second new trial motion, and which was denied in state court, but after the new trial motions...

JUSTICE CLAY: This was after the conviction?

DAUGHTON: This was after the conviction, yes.

JUSTICE CLAY: Ok, well back up some. When you were given the names and the statements or the summaries of statement, at that time initially, what did you do to try to obtain these statements, interview witnesses, or investigate these people whose names were provided at that time?

DAUGHTON: Well it's my understanding from the record is that they started to and found it futile. But they didn't follow up on every name. They didn't talk to every one of the 43 names.

JUSTICE CLAY: You're talking about the defense counsel?

DAUGHTON: Yes, I'm talking about the defense counsel.

JUSTICE CLAY: How many did they talk to?

DAUGHTON: I don't know that answer from the record. I don't know.

JUSTICE CLAY: Isn't that an important thing to know?

DAUGHTON: No, I don't...

JUSTICE CLAY: Even if we agree with your argument, wouldn't we want to know the answer to that?

DAUGHTON: But here's the problem as you've said before. In the hypothetical that you present, what is being said is, 'it's not the prosecutor who has the duty to provide the evidence to the defense, they just have to throw crumbs and have the defense go get it'. I mean, it's like the cases when you put, it used to be, you know, 4000 pages of discovery and you have something exculpatory in one page, and defense go find it.

JUSTICE CLAY: Well they're arguing, as I understand it, the information was not, the information might be otherwise available to you, and that somehow lessened their Brady obligation. Now I know you disagree with that.

DAUGHTON: Totally disagree.

JUSTICE CLAY: I'm not saying what the bench here thinks of that, but just to get at that argument, it'd be nice to see what efforts were expended by the defense, but I think I have your answer.

DAUGHTON: Thank you very much.

MAHER: May it please the court. Where the state court concluded that Lamar's application to re-open his direct appeal was untimely filed. The district court was correct in observing that if Lopez and Pace case names applied to LaMar's petition, LaMar would not be entitled to statutory tolling. However, the district court erred as a matter of law in applying the Chevron Oil balancing test to conclude that Lopez and Pace did not retroactively apply to LaMar's petition where the Harper rule of retroactivity clearly supplanted the Chevron Oil balancing test. This court should reverse the district court on the statute of limitations matter and determine that LaMar's petition was not timely filed. Also--

JUSTICE KETHLEDGE: I mean, one can hardly blame him for relying upon existing precedent in this court. So why isn't he entitled to equitable tolling under Holland, which would make his petition timely?

MAHER: Specifically your honor, the two-word answer to that-- three-word--

JUSTICE KETHLEDGE: Take as many as you want.

MAHER: The three-word answer to that question is: lack of diligence.

JUSTICE KETHLEDGE: Well, he files the thing, what? Five days after, I forget which event in the procedural history. His petition surely would have been timely had our court not thereafter reversed itself as to-- I forget which case it was-- you know the one I'm talking about.

MAHER: Yes, your honor.

JUSTICE KETHLEDGE: I mean, when he filed it he had every reason to think under our own precedent that it was timely. And so, I mean, why should we penalize- Why shouldn't we grant equitable tolling to someone who relies on our precedents to think that their petition is timely?

MAHER: Your honor, I'll answer that question to begin with this: to be clear, Judge Kethledge, the warden does not dispute that at the time Lamar filed his petition, circuit precedent allowed LaMar to conclude that the filing of any sort of application to re-open direct appeal with state court would be an act that wouldn't click off the statute. That was pursuant to circuit precedent; we're not disputing that. As a matter of fact, Magistrate Merz made that very conclusion. So we're not disputing with point.

JUSTICE KETHLEDGE: Ok, with you so far. It changes after he-

MAHER: That is correct. The second step, and I believe it's important to keep in mind in terms of equitable tolling about circuit precedent, the magistrate on that topic also concluded that because of the dynamics of that question of law as it was percolating through, eventually to be reversed by Lopez v. Wilson, the magistrate, who is a habeas capital expert if there ever was one--

JUSTICE ROGERS: We're here to review his work.

MAHER: Yes, exactly. But he concluded that a habeas capital practitioner would have discerned from the nature of the-

JUSTICE ROGERS: Which way the wind was blowing?

MAHER: Correct.

JUSTICE ROGERS: That's a pretty tough standard. I mean-

MAHER: Understood.

JUSTICE ROGERS: We expect people to follow our precedents. And to say that they should've known that our precedent was going to be tossed out before we did it? Umm... that's- Isn't that asking an awful lot of a litigant?

MAHER: And your honor, if that was the only thing the warden was relying on, I would agree with you 100%.

JUSTICE KETHLEDGE: Can I ask just before you go on, just to intersperse one issue? Weren't there other cases, though, that distinguished Bronaugh and said that, and ruled, and anticipated Lopez, but just were argued not to have sufficiently- some judges said they didn't distinguish or couldn't overrule Bronaugh? And others said it was different from Bronaugh?

MAHER: Your honor, the circuit precedent, which, by virtue of circuit rules, Bronaugh was the lead case. However, there were--

JUSTICE ROGERS: Was it a statue of limitations case, Bronaugh?

MAHER: Yes. Well, Bronaugh was the case that said that as far as Ohio was concerned an application to re-open direct appeal was part of the direct appeal itself therefore it caused an application to re-open direct appeal to be some type of tolling event since the statute was allowed a one year term from conclusion of direct appeal. Bronaugh said direct appeal was not over until an application to file to re-open direct appeal was filed and ajudicated. That was subsequently undone by Lopez v. Wilson. But there were other panels in between time that said we disagree with the Bronaugh and find some reason to distinguish it, which caused the magistrate at the district court level to conclude in an R&R that a habeas practitioner in the capital field would have known that Bronaugh was on shaky ground, meaning that there was another procedure, basically file a petition and ask for a stay and a bay, is all it would have to do. Instead-

JUSTICE ROGERS: [inaudible] I mean, its not granted as a matter of course in the district court. You have to show good cause, right? For why you didn't exhaust something?

MAHER: Your honor, I don't disagree with you. Now, there is three cases from this court that are reported in the appellee's brief. I believe the case names, first names: Henderson, Johnson, Sherwood, where this court has said- and correctly so, that where a habeas petitioner has justifiably relied on circuit precedent that was subsequently overruled and, this is the key point, they were diligent. They were dilligent in pursuing-

30:06

JUSTICE ROGERS: How was your opponent not diligent?

MAHER: Ah... the timeline will suggest this your honor. The application to re-open direct appeal that was filed with the fourth district state court of appeals was filed on August 11th, 2004, which was more than... um... almost five years past the fourth district court of appeals decision. The 26B procedure in the state of Ohio said "a timely 26B would be within 90 days, if you file outside that, submit an affidavit for good cause for delay" and in this case, the 26B application to re-open appeal was filed more than four and a half years late.

JUSTICE ROGERS: That's a reason to deny that application, but the delay you're talking about is delay in the state courts.

MAHER: That is correct.

JUSTICE ROGERS: Why isn't that simply a reason to- for state courts to refuse to adjudicate things in state court that are untimely, but not... not something that we would consider determining whether to adjudicate a federal habeus petition.

MAHER: Your honor, the specific answer to that question would be that warden's position is that the wardens position is that Johnson v United States, 544 US 295, 2005 which defines due diligence as prompt action on the part of the petitioner as soon as he is in a position to realize he has an interest in challenging a pertinent state court determination would mean that, for equitable tolling purposes, state activity and federal activity are looked at together, not just federal activity but it would be state and federal activity, that's the warden's position. It would come out of Johnson v United States. The warden would also point out that in this courts analysis of these cases- Henderson, Johnson and Sherwood, where this court determined that reasonable reliance on overruled circuit precedent justified equitable tolling there was in those three cases, a dilligence analysis that included as I read the case- included diligence on the state's side, not just the federal side. The warden's position is because this court, in the Henderson, Johnson and Sherwood case went to the extra effort of engaging in a diligence analysis it would lead the warden to conclude that this court has determined that, in order to be entitled to equitable tolling for justifiable reliance on overruled circuit precedent the petitioner also has to be dilligent in state and federal court. The warden position is in this case that LaMar was not diligent in state court. He slumbered on his rights for near four and a half years, and obviously the affidavit for just cause to excuse the delay was rejected not only by the 4th district court of appeals, but by the Ohio Supreme Court, because the affidavit to excuse the delay essentially was a finger pointing, that- that other attorneys should have done something, didn't do something, and that excuse was not justifiable for the lack of diligence, so the warden's position is...

JUSTICE CLAY: You know in deciding whether to agree with your argument or not and wouldn't we be inclined to do a Teague v Lane analysis of the whether there was a change in the law to determine if there a fundamental constitutional right that had been affected and base our analysis upon- on that, if we take into account all of the requirements of Teague v Lane.

MAHER: Your honor, I would disagree that Teague would be the appropriate case. I beleive the apropriate case for that type of analysis would be, uh... Harper v Virginia Dept of Taxation 509 US 86, 1993 and the Harper case concluded that full retractive effect is to happen in all cases- civil cases which, this is what habeus corpus is, and I believe that this court- in-

JUSTICE CLAY: Well, under Teague we'd look at whether we're dealing with a collateral remedy as opposed to a direct review, and also what the interest in deciding that the judgment is entitled to repose looking at the constitutional magnitude of the interest at stake. So that Teague v Lane analysis is quite a bit different from Harper, and maybe, maybe Teague would be inappropriate, but I- i haven't heard why that would be so, I don't think that case was really briefed by the parties here, to any degree.

MAHER: Your honor, in response to that, the question before the court is a question of federal statutory interpretation of 2244D, it's a federal statute of limitations question, and I do- I am not aware of a circumstance where Teague would be called on to analyze a question of what does the federal statutory tolling for habeus corpus petitions mean, and then the concomitant question about equitable tolling, where statutory- a petition is statutorily untimely. So that is where, because Harper is a case that speaks to civil litigation, habeus petition is in fact civil litigation, and the question is relative to 2244D a federal statute of limitations question, so consequently, even in terms of whether this- the question is on direct review- see because what we're discussion has nothing to do with the merits or demerits of the habeus petition.

JUSTICE CLAY: I hate to interrupt you, but doesn't- even though habeus is civil in nature, doesn't this Henry Nascio case from the sixth circuit apply to new rule apply the Teague analysis to new rules of criminal procedure, to some extent.

MAHER: Your honor, I'm not familiar with that case, but- the warden's position is, the question before the court at this present time has nothing to do with criminal adjudication or a criminal claim, didn't really even have anything to do with the Brady claim- any of the habeus claims. It has everything to do with whether or not the habeus petition, generically is or isn't untimely, and under that analysis, cases that discuss- such as Teague whether or not-

JUSTICE CLAY: But isn't the issue all that- if we're trying to determine if it was timely, we have to decide if we're looking at a matter on direct review or these collateral proceedings or, and what the constitutional magnitude of the interests involved. I'm just not sure it's as simple as you're making it.

MAHER: Your honor, if I could respond to that, I will say that the question of equitable tolling- if in fact- the court doesn't get to the question of equitable tolling unless it determines- which the warden beleives it should- that this case was statutorily untimely. If the case was statutorily untimely- if this court determines that the petition was timely filed pursuant to the statute, there's no reason to even discuss equitable tolling, because it's statutorily timely. But the warden's position is, it's statutorily untimely for the reasons expressed in the brief. With that being said then, the next step relative to questions of equitable tolling, I think the key base word there is equity and the warden certainly would say that if this court is sitting as a court of equity, it's entitled to factor in whatever circumstances it deems to be equitable.

40 MINUTES

JUSTICE ROGERS: That gets back to how long it took to progress through the state, right? Is that where you're-

MAHER: Your Honor, that's what I'm getting back to. So, that's it. That's what I got.

JUSTICE ROGERS: Alright. We have to- there's questions on...

JUSTICE CLAY: Certainly, um, are you going to address the Brady issue?

MAHER: Yes, yes Sir. Uh, in reference to the Brady question, I think it's important to keep in mind- first, I'd like to say the warden's analysis is exactly consistent with Judge Kethledge, I think the analysis that it seemed that you were engaging in in terms of your questioning, not to say how the courts gonna come out, but, your, the analysis, the questioning that you were giving, uh, is consistent with the warden's position. Now, with that, uh, being said, factually, I think it's important to keep in mind, and this is getting, actually getting back to the series of questions that Judge Kethledge asked. You begin with, there's about 400 inmates in L6 during the riot. Actually, there was a number of inmates who were actually compensated by the state from a lawsuit under a theory of failure to protect. There was actually, anecdotally, the- the state paid 4 million dollars to a group of inmates who sued that were confined back in L6-

JUSTICE ROGERS: How is this related to the mix and match issue?

MAHER: Your honor there was 400 inmates.

JUSTICE ROGERS: I understand there were 400 inmates.

MAHER: Ok.

JUSTICE ROGERS: But what about the mix and match issue?

MAHER: Out of that 400, 300- excuse me, three months before the start of the trial, the state provided the defense with a list of, I believe it's 76 names. Essentially saying, of all the inmates that were behind the walls during the riot, that were not under the control of the state of Ohio, but were in some measure behind the walls at the riot, here are 76 names-

JUSTICE ROGERS: You're saying they narrowed it down from 400 to 76.

MAHER: That is correct. That's the warden's position.

JUSTICE ROGERS: You're saying they couldn't narrow it down any further, so the fact that they narrowed it down before doesn't really address their argument.

MAHER: Well, your honor, the warden-

JUSTICE ROGERS: I'm wondering what your answer is to their argument, they have an argument that makes a certain amount of sense, I'm wondering what your answer to it is. The argument is, you gave us a bunch of names and a bunch of statements and you didn't connect them. And so, it wasn't very useful. And, at some level of abstraction, it's gotta be true that just giving people information without connecting it is gonna be useless. They're saying you reached that here. You gave us 76 names or however many and you gave us 40 statements or however many, and it isn't the statements, it's the summaries of the statements, and then said, 'go to it, you figure out the rest.' That seems to be the nature of their argument. What's the answer to that?

MAHER: The answer is, uh, your honor, that since the information was in the possession of the defense three months prior to trial, along with an extra five-thousand dollars for investigator's fees...

JUSTICE ROGERS: Why not just give it to them, though? I don't understand.

MAHER: Your honor, the rationale that was provided by the prosecutors at the time, uh, at the time of the disclosure, was that there was security issues concerned.

JUSTICE ROGERS: So it would be insecure for them to have certain information.

MAHER: Your honor, that was the rationale that was provided.

JUSTICE ROGERS: But, they could get that information. So how is it helping security, just to make it harder for them to get the information that they were getting?

MAHER: Well, your honor, the state of Oh-

JUSTICE ROGERS: We want you to get the information, we just want you to have a hard time getting it? Or we don't want you to get the information?

MAHER: Your honor, the warden's position is that a Brady violation initially requires a suppression of evidence. That in this case there was not a su-

JUSTICE ROGERS: You must say that camouflaging it at some point becomes suppression. And they couldn't put all the words in alphabetical order and say, you've got the words now put them together. I mean, that'd be absurd.

MAHER: Your Honor, the warden's position is, there was a mix and match game. That's not disputed, it's never been disputed. There was a list of names and a list of statem-

JUSTICE ROGERS: At some point, mix and match is total obfuscation. I'm not saying this was, but at some point it would be. Right?

MAHER: I'm not disputing that proposition either.

JUSTICE ROGERS: So there was really no good reason for obscuring it, you're just saying it wasn't such a bad obscuration. Is that the idea?

MAHER: Your honor, what I'm saying is that the disclosures took place three months before trial with an additional five thousand dollars worth of investigative fees, and the defense was not in any way precluded from narrowing down a list-

JUSTICE ROGERS: So they obscured it and then gave them the tools to, to uncover the obscuring.

MAHER: And, that may not-

JUSTICE ROGERS: Apart from whether that's a violation, why would you do that?

MAHER: Your honor, the answer to that question as provided by the prosecutors at the time of this hearing-

JUSTICE ROGERS: You're not defending it.

MAHER: The rationale provided was, it was for inmate security.

JUSTICE ROGERS: But you're not defending that.

MAHER: Your honor, I don't, I'm not attempting to defend or not defend it.

JUSTICE ROGERS: But I'm asking. You're not defending it. You're just saying that's what they did and we gotta see what's-

MAHER: That's part of the state court record and the state of Ohio was within reasonable bounds

JUSTICE KETHLEDGE: Well, what, I mean, I thought Brady was a little more simple than this. I thought if the prosecution possesses evidence favorable to the defense, they have to give it to the defense. Period. Not this sort of, well, you know, if we think we have a security reason or some other good reason, we're going to just give some fragmentary information but we're not going to give the actual exculpatory or semi-exculpatory statement we had. I mean, what case would the state point to for the proposition that Brady has an exception, uh, that would allow the state to withhold those- let's just talk about the statements that the state had. Forget about what's in the witnesses heads. The statements, they have some statements that supposedly are somewhat exculpatory. What case does the state point to that lets the state not provide that statement to the defense?

MAHER: Uh, O'Hara v. Bergano 499 F3D 492, 6th Circuit, 2007, “Brady generally does not apply to a delayed disclosure of exculpatory information but only to a complete failure to disclose.” That's the case we would point to.

JUSTICE KETHLEDGE: Yeah, I understand what you're arguing.

MAHER: In addition, uh, your honor, the case of Owens v. Guida, 549 F3D 399, 6th Circuit, 2008, uh, stands for the proposition that if the evidence in question is not wholly within the control of the prosecution, which actually, your honor, the evidence, if you're talking about evidence in court, it's actually sitting inside the inmate's head.

JUSTICE ROGERS: Well, I mean, one could argue that the statements that the prosecution had, the 72 statements that were not provided, that those themselves could have evidentiary value because you could impeach a witness who testifies contrary to his statement at trial, but they never get those statements they have to go off and sorta ah- I mean, they didn't do it, but they'd have to go off and try to question these people themselves.

MAHER: Your honor, the warden's position is the state of Ohio was within reasonable bounds to conclude that did not amount to a Brady violation. It's perhaps not the clearest friendliest type resolution, but it's within bounds, so there was an opportunity afforded, different circumstances made different cases, if this was perhaps the eve of trial, this was two days before, where there was no opportunity whatsoever- and we would also like to point out-

JUSTICE KETHLEDGE: Is that how the state court ruled? Is that how the state court reasoned in regards to this issue?

MAHER: In respect to what,your honor?

JUSTICE KETHLEDGE: Is that how the state court ruled, is that what the state court's analysis was, what you just said.

MAHER: Well, this was a merits determination by the Ohio Supreme Court, and the Ohio Supreme Court concluded that this is good enough to give this information, to have ninety days, to have investigator's fees-

JUSTICE KETHLEDGE: So your answer is yes then.

MAHER: Yes. Uh... so...

JUSTICE ROGERS: What would you have to say in response to Mr Daughton's point, that- on materiality. That this was a case where there wasn't physical evidence, it was the credibility of the prosecution's witnesses against that of the defense witnesses, and introducing into the mix a number of people who purportedly would say that they saw other people committing the murders, might tip the balance of credibility in the defense's favor. What's your answer to materiality.

MAHER: The very short answer is: LaMar's defense was alibi. Because what the jury heard from the defense which Mr LaMar did not have to put on a defense case, but part of what the jury analyzed was LaMar's defense that "I wasn't even there, not at all" and as the court- judge Kethledge pointed out in his questioning, none of the disputed statements took Mr LaMar out of the L6 area, which would have been consistent with his defense. There was no statements that would bolster an alibi defense. And I have run out of time. Yes, your honor. Thank you.

DAUGHTON: I want to answer some questions in regard to the Brady and the opportunity to investigate... one of the statements mentioned here was that they had $5000, at $100 an hour that's fifty hours. You have one week. What we haven't addressed at the end of the day was not enough for a complete investigation.

JUSTICE KETHLEDGE: I've seen other stuff saying we'll give you all the resources you want.

DAUGHTON: What happened was in the- at the evidentiary hearing at this case, and I know there's an issue for Pinholster that-

JUSTICE KETHLEDGE: Rather than follow the follow the supreme court decision we have to-

DAUGHTON: I understand, and because defense counsel did in fact address that at the evidentiary hearing, and what he said is we tried and tried and we kept going up against a brick wall and we finally got to the point that it was a waste of our resources, because we got no answers.

JUSTICE KETHLEDGE: Well, you know the rule-

DAUGHTON: I understand, which is why I answered the way I did the first time I was up here. Again, the difference is, when you asked was there a supreme court that allowed this sort of thing? No. Because the supreme court decision said that you can't play that game it's gotta be straight forward. They cited a 6th circuit court, which said that if there's a delay, that's fine as long as you give it in time as long as it was complete. The whole argument here is the way in which it was done, it was never provided. It was tantamount to a deprivation, what is even worse was holding the carrot out in front of the dog and not letting him, you know, touch it, because you know there's something out there that can help you, but you can never use it, you can't find it. It's even more frustrating what's going on. And again, the problem here is that the trial judge went along with this, the trial judge actually assisted in the names and how to format this so that the state court finding, when the supreme court said "that's fine" they found that this procedure was compliance with Brady and that's where it's wrong, that's where it's a totally unreasonable application of Brady and particularly of Kyles.

The last point that I would like to make is in relation to the Holland case, this wasn't a case where four and a half years before he filed. At this time when Keith did his case, there was an appellate decision and then we got put in a position where it had to be- the Murninhan had to be ninety days from the appellate decision, so he would have had to raise ineffective assistance to the same counsel who were representing him to the supreme court of ohio. So, during this four and half years, there was direct appeal litigation timely that was going on during this time. When the cert petition was over, we had- counsel had a situation where Bronough and in fact habeus, or excuse me Murninham counsel had actually advised Mr LaMar, look Bronoaugh is out there and there was a dispute over who was going to file it, was it the Ohio public defenders, was it the people who were assigned, they weren't gonna get paid, so once it came out Holland says there can't be a delay in the filing of the habeus petition, there's no mention in Holland whatsoever with any delay in state court- and everything in state court with the exception of the 26 B was timely filed, there was litigation going on during this time.

JUSTICE KETHLEDGE: How do you respond to Mr Maher's point that the Johnson case- and Henderson the three cases that he mentioned, Henderson, Johnson Sherwood, all point to the peititoner's dilligence with respect to state filings in determining whether he's entitled to equitable tolling.

DAUGHTON: We had this issue in John Drolland, and in White v Woodall, the Supreme Court came back unequivalently and says look you can't look to circuit court decisions as a way to change our holdings. It has to be Supreme Court holdings altogether.

JUSTICE KETHLEDGE: He's got a Supreme Court case, Johnson v United States. Maher referred to where, I mean he says, they looked at timeliness in State Court as well as federal.

DAUGHTON: That flies in the face of Holland, because Holland clearly says it's the petition, the habeus at all. However, my answer to that- there was no lack of diligence in state court, that again, throughout this entire proceedure there was timely pending direct appeal litigation going on. When it was over the habeus counsel who was appointed six months later had a choice: we can depend on bronaugh, and then, when it's done, which it was, we presented this case to the district court in it's entirety. All the issues were done, it was all exhausted, there was no reason for stay in a bay which is not automatic, so it was presented in it's entirely, not piecemeal litigation, to the to court, which would seem to be the reasonable way to do it especially at that time when you're dependent upon circuit precedent. So based on that the decision was eminently reasonable by counsel and certainly is not any type of undue delay for the filing of the petition and frankly for the Murningham itself, because it was filed within a year of when the Supreme Court decision was, so we're not talking about an extremely lengthly time. Thank you very much.

JUSTICE CLAY: Thank you and the case is submitted...