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.
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...
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