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Thank you, Your Honor. Good morning. Mr. Chief Justice, Madam President, may please the Court. I'm Mark Trigg, and along with former Attorney General

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for the precise question as articulated by this court

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and its order granting our petition for Sir Shiari,

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the following.

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Did the Court of Appeals air in its view

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of the trial court's decision

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to strike any scandalous matter

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from orthosavanas complaint?

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We respectfully submit that the answer

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that question is yes.

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And we further respectfully submit that a review

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of the Court of Appeals order, coupled with even a cursory review of the plaintiffs' complaint

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in this action, makes it imperatively clear that the trial courts of this state and

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the lawyers who are privileged to appear before them need some guidance from this court, which

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has the dual responsibility of governing the rules of conduct of our profession and of

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ensuring equal, efficient justice is provided throughout the state.

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We believe that it is incumbent on the court in this case to let practitioners and trial

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judges alone alike understand the acceptable pleading parameters in this court so that

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that we might protect the decorum and the dignity that is long been associated with this

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profession.

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The specific statute called into question for the courts review today is the official

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code of Georgia annotated section 9-11-12F.

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That statute provides as follows.

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A court may strike from any pleading, quote, any insufficient defense, or any redundant,

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immaterial, impertinent, or scandalous matter."

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We must in construing a statute as this court is held, perhaps most notably, in the opinion

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then authored by Justice Blackwell in the Deal Vs. Coleman decision in which Justice

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Peterson participated as a solicitor general, we must assume that when the legislature

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enacts a statute, it meant what it said and it said what it means.

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Words have meanings in the Deal Vs. Coleman case, the opinion dealt with in some detail, the

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serial comma, the disjunctive or, we have that here, and while we don't have to parse

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participial phrases like was done so thoroughly in that case, what we do know is that scandalous

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follows the serial comma, it follows the disjunctive or, that means we respectfully submit

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that immaterial, irrelevant, and redundant means something differently than the word scandalous.

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Mr. Chair, if you read it, if you read it that way, immaterial, redundant, and

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impertinent would also mean something different than each other, but the federal courts and

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In this court, to be extent, we followed it because this rule is identical to the corresponding

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federal rules civil procedure, right?

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Yes, sir.

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And for those three words, it's fairly uniformly agreed that they don't really mean anything

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different.

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In material redone that, in pertinent, those are all treated as basically the same thing.

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I'll respond the couple of parts, presenting Justice Namus.

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I think the argument can be made certainly that based upon review of the landscape of federal

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decisions that have interpreted rule 12F, they do stand for this general proposition

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that motions to strike under 12F are generally disfavored.

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However, if we drill down further, there's a distinction between scandalous, and we find

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to that actually in the McGiverin decision from the Court of Appeals, 1974, the McGiverin

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decision in northwestern versus McGiverin.

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Court of Appeals said, immaterial, I'm sorry, immaterial, impertinent, and redundant,

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they're all closely related, but those three are more closely related than scandalous.

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Even in 1974 we recognized that scandalous is in a different category.

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Now, I will agree that I think in common parlance redundant, certainly, if we look at the obligation of the court at this point, is to look at the language the way an ordinary reader of the English language would understand it, as this court knows.

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Redundant, superfluous, repetitive, but that aside,

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whether something is immaterial or is impertinent,

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I think we're dancing on the head of a pen in trying to distinguish those as being

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anything other than irrelevant.

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Then we get into this category behind the serial comma and the disjunctive

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or scandalous, and the scandalous mean something other than what the Court of Appeals

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said, which is synonymous for impossibly relevant.

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We believe scandalous means something other than impossibly relevant.

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The legislature met what it said, and it said what it meant when it ascribed a separate

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term as part of the 9-11-12-F analysis.

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And in support of that, there are a number of definitions found in the case law that we

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think are essentially synonymous with one another. Here are a few examples. Reflect

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cruelly on the defendant's moral character. Offensive to propriety or morality. Disgraceful,

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shameful or degrading acts of conduct and as defined by Moore's federal practice. Any

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allegation that unnecessarily reflects on the moral character of an individual

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or, disjunctive or, states anything in repulsive language that detracts from the dignity

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of the Court.

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Would nearly every divorce case have to be strickened, every pleading in a divorce case,

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or a child molestation, prosecution?

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Very good questions.

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And the answer is this.

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There are unquestionably cases.

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given the nature of the cause of action, given the elements that must be proven

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by the plaintiffs to succeed, there are going to necessarily be allegations

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that might indeed fall within the definition of scandalous.

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They could offend the moral sensibilities of an average reader, but they're necessary.

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They have to be included in order to advance the plaintiffs' cause.

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I would make an analogy to what the Court does under Rule 403.

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The trial court will sometimes exclude evidence that is undeniably relevant, but the prejudicial

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impact of that evidence outweighs the probative value so the jury doesn't get to hear it.

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But the statute doesn't talk about prejudice.

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It does talk in some sense about relevance.

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So are you suggesting that the rule then becomes a prejudice inquiry instead of a relevance inquiry?

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Yes.

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And the reason for that is this.

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We talk about the fact is both parties acknowledge that this court can look to federal courts for guidance.

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This court has never addressed this question.

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Most federal courts have not addressed this question.

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When the cases that are cited and relied upon by the Court of Appeals and even in the party's briefs,

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talk about the standard.

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It's generally in a case involving striking of an insufficient affirmative defense, which

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is recognized in a separate category by itself since affirmative defenses are due liberal

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construction, or in the case of McGibburn, it dealt with striking something that was deemed

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to be impertinent, not with the question of scandal.

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Here's a case we think is very insightful and instructed to the court.

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It was decided three months ago today, very recent decision, and it was decided by the Western

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District of Virginia.

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That case, which is cited in our briefs,

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is Williams vs. Lipscomb.

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Here's what Williams vs. Lipscomb did.

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This was a case in which the plaintiffs, an African-American family, went to lunch at Golden

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in Corral for an all-you-can-eat buffet.

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The defendant, one of the defendants, was their server.

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The allegation is that she was spending an inordinate amount

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of time sweeping around their table, spying on them.

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The allegation is that she came up to them

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and said, this is an all-you-can-eat buffet,

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but you just put some food in your purse.

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There's an extra charge for that.

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The allegation that that was a race-based conduct

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and the conduct that followed with the police

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getting involved gave rise to a 1981 claim, a Civil Rights Violation

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claim. In that case, there were allegations in the complaint that the defendant

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Waitress was a known racist. There were allegations that she was known for

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using the N-word, and they used the N-word didn't spell it out. Everybody knows

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what the inward means. The trial court, Federal District Court, three months ago, struck

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those allegations from the complaint even though it was a civil rights case. Now, what do we have here?

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Well, was it a civil rights case based on racial discrimination?

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Yes.

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So you really think that the use by a defendant of racial terminology in a civil rights case

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case is both, well, first is it irrelevant, clearly not, right?

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And how is that, I mean, under the Moore's definition, how is that scandalous, if you

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are repeating the terms that the jury will hear at trial?

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Are you saying the court would properly exclude that evidence at trial?

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That the defendant...

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I'll just say, if that's the case you rely on is right, I think you are on very slim

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Let me see if I can find some thicker ice.

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And I would attempt to get there here.

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Council, was that a, did that case involve a motion to strike a complaint, portions of

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a complaint?

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Yes.

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And would you agree that when you decide whether something is necessary to a complaint, you

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have to look at it in terms of what it's supposed to be in a complaint and what is not, that

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And a complaint is a short and plain statement of the claim and you are not supposed to plead

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all your evidence that may prove relevant at trial.

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Would agree, Justice Blackwell, absolutely.

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And the important distinction here of Justice Namus, President Justice Namus, these are not

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allegations in the complaint that the defendant's server called the plaintiffs the end word.

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The allegation is that she had a no reputation in the community as a racist, which are two

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very different things and which bring this back to the case before you're on.

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But then that sounds to me like what you're actually arguing is that that was relevant

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or not relevant, not whether it was prejudicial.

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Well, in that instance, we're back to the standard of review.

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the trial court made the decision in that instance that however it reached the

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balancing that that an allegation of a reputation of being racist wasn't

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critical even to a 1981 claim though in that case the court made a

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substantive finding that the plaintiff had pled to plead the proper aspects that

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But again, the UN case to follow up on Justice Warren's question, it sounds like in that

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case the court decided that this is just not relevant to your claim.

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If it were relevant to the claim, if it were the waitress calling the plaintiffs at the

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time of the incident, the N word, then I don't know how you would exclude it under the scandalous

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piece.

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It would clearly be relevant in that situation, right?

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And you would say that that can be excluded under the scandalous piece.

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The Court found expressly in that case that it was both scandalous and in material,

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under both problems.

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Right.

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Although as the cases on the treatises say, if it is irrelevant, then even if it is kind of

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slightly offensive, it is scandalous, too, but the Moore's definition that you ask us

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to adopt says it has to be unnecessarily scandalous, or that it would,

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or states anything

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in repulsive language that detracts from the dignity of the court.

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But on the repulsive language side, the cases seem to say you can't just gratuitously use

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lots of curse words in your pleading if they're not really necessary, but in a case where

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It's relevant to your charges, and it's not outrageously unnecessary in its terminology.

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So why don't you apply your earnings and time down?

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The standard in this case, the trial court, and in order you drafted, I believe, or

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your counsel, prior counsel drafted, just said, it's all scandalous, everything's out.

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With no explanation, do you think that's appropriated as a trial court need to explain

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itself, if it's striking things, I think that...

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The better practice would be for the trial court to get a reason decision that it gives the Court of Appeals the opportunity to make a reason to analysis under the Reviews of Discretion Standard. And then when it got to the Court of Appeals, they excluded some things as saying they're irrelevant and also scandalous like prior criminal activity and drug use. But then they left the another material saying it's actually relevant to the case. What was wrong with the stuff that the Court of Appeals said?

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it was relevant and not scandalous.

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Let me give one example of that in the interest of time.

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This is something the trial court struck,

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but the Court of Appeals put back in.

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In paragraph 18, the plaintiff alleged on about July 2015,

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Dr. Ascoly noticed the phrase in lover,

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written into the dust on his vehicle's windshield.

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Now, I just said in lover,

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or the actual complaint here spells the word out.

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Isn't the argument that there was something,

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well, one of the clients is constructive eviction,

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that they were basically run out

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of the building in fear and by pressure.

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Finding the N word written in your,

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on your vehicle might be very offensive,

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but how would that be connected to your clients,

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except for saying that your clients

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had done similar conduct before.

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I mean, you couldn't be run out of your building based on a random threat, but you could

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be run out of your building and the claim is they were run out of their building here

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because of a threat that was connected up so they knew it was a threat from Dr. Tavis.

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The legitimate point in question, let's drill down on a little further.

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What's the specific allegation in the complaint?

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This isn't the specific allegation in the complaint.

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Upon the discovery of this word, allegedly written on the dust of his windshield.

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Quote, so as to not a work or concern his employees, Dr. Ascoe merely wiped away the praise.

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Although troubling to Dr. Ascoe, Dr. Ascoe did not realize Dr. Chappius was behind the message

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at that time having long since concluded it landed with a gaseous.

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Dr. Chapius, however, is a known racist that has previously made highly offensive remarks

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in the past and engaged in a pattern of systematically firing all African-Americans from his medical

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operations.

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That's the allegation the Court of Appeals put back in.

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At the time, the plaintiff, actually not even the plaintiff, the principal of the LLC, saw

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this racial epithet, the most vile and hated epithet in the history of our nation, allegedly

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written on his windshield, it didn't even occur to him that Dr. Chapness had anything to do with it.

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But it's tied to the allegation in the complaint under recent harassment and hostilities.

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In paragraph 14, it mentions that defendants have been doing whatever they can to disrupt

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ortho-sports of anist business, and that cited as an example of what defendants have been

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doing to disrupt business.

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It is, but if one looks at what the factual predicate is, it is in the allegation.

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It's an after-the-effect assumption that because Dr. Chapius has allegedly used the word at some point in the past, he must have been responsible necessarily.

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But that suggests that you have to connect at the moment something happens why it happened. You're allowed to, at some point, connect dots and make an allegation based on that, aren't you?

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Yes, you are. In this instance, though, let's look at what we're talking about, and I want to try and say a minute for a bottle that I want to be responsive to your question.

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We're talking about when this complaint is viewed in the end whole, everything that

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was stricken by this complaint.

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One could come to the conclusion, the rational conclusion, that when plaintiffs drafted

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this complaint, they went out of their way to make every skirless and scandalous allegation

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against Dr. Chapius that they could for the purpose of inciting and inflaming the reader.

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That is not the function of proper pleading practice in this state.

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We think the proper practice, yes, relevancy, materiality, should be part of the analysis,

225
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but if there is tenuous relevance and significant prejudice, we think the trial court is within

226
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its discretion, the Court of Appeals abused its discretion and ruling otherwise.

227
00:19:33,580 --> 00:19:33,900
Thank you.

228
00:19:33,900 --> 00:19:34,860
I think it was a trick.

229
00:19:54,440 --> 00:19:56,860
My name is Yasha Haderi, and I represent

230
00:19:56,860 --> 00:19:59,000
at Appellis, or for the support of Savannah.

231
00:20:01,820 --> 00:20:05,200
Before I jump into a response to some of these statements

232
00:20:05,200 --> 00:20:07,300
that were directly made, I think it's important

233
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to note the context of rule 12F.

234
00:20:11,400 --> 00:20:13,580
The appellants would have us believe

235
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that it sort of came to exist in the vacuum.

236
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Neglecting the fact that the Civil Practice Act

237
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came to be after a substantial overhaul

238
00:20:22,240 --> 00:20:24,840
all the Georgia's code and modeled the federal rules.

239
00:20:27,460 --> 00:20:30,080
By doing such, the Court of Appeals,

240
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interpreting rule 12F,

241
00:20:32,500 --> 00:20:34,060
performed the very same analysis

242
00:20:34,060 --> 00:20:36,760
that this court performed in analyzing

243
00:20:37,120 --> 00:20:39,880
paragraph B of the same statute regarding motion to dismiss.

244
00:20:40,700 --> 00:20:42,580
Both the Court of Appeals and this court

245
00:20:43,320 --> 00:20:46,500
looked to the preeminent Federal Treatise,

246
00:20:46,580 --> 00:20:48,820
Professor Morris Treatise, and determined

247
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how should the statute be interpreted.

248
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Since

249
00:20:53,780 --> 00:20:58,680
that time, for half a century, the Court of Appeals has consistently applied

250
00:20:58,680 --> 00:21:01,500
the same interpretation.

251
00:21:02,520 --> 00:21:07,220
Much as this Court has similarly applied the same interpretation regarding motions

252
00:21:07,220 --> 00:21:08,820
dismiss in paragraph B.

253
00:21:09,280 --> 00:21:15,300
The problem is, the Court of Appeals, both in the cases, the earlier Court of Appeals

254
00:21:15,300 --> 00:21:20,980
cases it cited and in what it said it was doing, citing cases that were only about

255
00:21:20,980 --> 00:21:26,920
the interpretation of the first three words of Twelves, not the word scandalous.

256
00:21:27,760 --> 00:21:33,200
And ignore the fact that Moore's definition itself, as well as other treatises and

257
00:21:33,200 --> 00:21:39,520
federal cases, say, scandalous is the one thing in Twelves that goes beyond mere relevance.

258
00:21:40,520 --> 00:21:43,540
Is that right or does the Court of Appeals separately?

259
00:21:44,380 --> 00:21:50,400
Well, let me ask first, do you believe scandalous means has some active meaning

260
00:21:50,400 --> 00:21:52,680
other than the other words in 12b?

261
00:21:52,940 --> 00:21:53,900
I would, Your Honor.

262
00:21:54,340 --> 00:21:54,540
Okay.

263
00:21:54,760 --> 00:21:58,060
And did the Court of Appeals appreciate that in its decision?

264
00:21:58,360 --> 00:22:00,920
I believe the Court of Appeals didn't in fact appreciate that.

265
00:22:01,240 --> 00:22:06,160
And it seems to me to wear in the Court of Appeals opinion, you think, they reflected

266
00:22:06,160 --> 00:22:10,300
that there is a separate meaning for the word scandalous.

267
00:22:10,540 --> 00:22:17,820
They cited any of the case law, federal case law, the treatises that define

268
00:22:17,820 --> 00:22:24,780
scandalous. I don't think they actually go into the definition of scandalous for what they do

269
00:22:25,580 --> 00:22:31,740
is they go into sort of the notion of it's just matter-relevant. And the reason why that's

270
00:22:31,740 --> 00:22:37,020
important, for your honor, is because let's assume that we're ignoring the body of federal case law.

271
00:22:37,520 --> 00:22:41,480
Let's assume we're ignoring the treatises. Let's assume we're ignoring the fact that other

272
00:22:41,480 --> 00:22:46,260
sister jurisdictions have applied the same tests and reached the same conclusion. Let's even ignore

273
00:22:46,260 --> 00:22:51,020
Black's Law Dictionary, which defines scandalous matter as a term of art as being

274
00:22:51,020 --> 00:22:54,000
both grossly disgraceful and irrelevant.

275
00:22:54,580 --> 00:22:56,240
That's what Black's Law Dictionary say.

276
00:22:56,740 --> 00:23:01,600
Let's just assume that the statute came up in a vacuum where it simply states that the

277
00:23:01,600 --> 00:23:06,460
trial court may on its own initiative or upon motion strike any matter that it deemed

278
00:23:06,460 --> 00:23:08,260
scandalous end of story.

279
00:23:08,680 --> 00:23:14,220
In that situation, some of the judges just raised the issue about what about a child

280
00:23:14,220 --> 00:23:17,740
an organization case, or a divorce case, what if the trial court came back and said,

281
00:23:17,780 --> 00:23:18,100
you know what?

282
00:23:18,200 --> 00:23:19,160
This sounds distasteful.

283
00:23:19,420 --> 00:23:20,660
I'm just going to strike all of this.

284
00:23:21,580 --> 00:23:23,580
That sounds odd.

285
00:23:23,860 --> 00:23:27,580
I think intuitively you'd say that sounds to be some sort of an abuse of discretion.

286
00:23:28,400 --> 00:23:31,900
And the question is, what sort of test would you arrive at, or how would you go back to

287
00:23:31,900 --> 00:23:34,240
the statute to not result in absurdity?

288
00:23:35,240 --> 00:23:39,760
That's where you come back to, if the matter is relevant, it probably should say in there.

289
00:23:39,760 --> 00:23:44,620
In all of the cases, why is relevant the right standard?

290
00:23:45,040 --> 00:23:52,780
I mean, it seems logical that the fact that a defendant has done something really bad

291
00:23:52,780 --> 00:23:57,040
should not be a reason why the claim against that defendant fails.

292
00:23:58,200 --> 00:24:06,920
But what if there's evidence that's relevant but not necessary to survive a 12-B-6 motion?

293
00:24:09,160 --> 00:24:11,640
Why wouldn't it be appropriate to strike that material?

294
00:24:13,160 --> 00:24:15,500
You can't say it affects the bottom line of your case.

295
00:24:17,020 --> 00:24:23,780
Not in that context, but according to the statute, the trial court has discretion to strike any portion of any pleading.

296
00:24:24,540 --> 00:24:26,800
What if we get into a motion for some re-judgment?

297
00:24:27,460 --> 00:24:34,260
And these claims are relevant, but they're distasteful or the judge doesn't like the trial court, doesn't like the fact that they're mentioned.

298
00:24:34,260 --> 00:24:39,180
Does that give the trial court discretion to simply strike those portions out of your motion

299
00:24:39,180 --> 00:24:43,080
for summary judgment where you assert theories of recovery or causes of action?

300
00:24:43,560 --> 00:24:45,140
That's not a pleading as it is.

301
00:24:45,400 --> 00:24:48,860
It depends on what your definition of pleading is, Your Honor.

302
00:24:49,200 --> 00:24:49,660
And that's?

303
00:24:50,340 --> 00:24:56,060
Summary judgment motions are not pleading under the Civil Practice Act or the Federal Rules of Civil Procedure.

304
00:24:56,740 --> 00:25:00,960
Pleading's are limited to the complaint, the answer across, and so on.

305
00:25:00,960 --> 00:25:06,080
So, to that end, with Justice Names' question and Justice Pearson's too, let's say you have a complaint.

306
00:25:06,520 --> 00:25:11,760
It starts out it states the names, it gives you basic background information, you know, just completely basic.

307
00:25:12,080 --> 00:25:16,500
But every other allegation is a reasonable person would think it's scandalous.

308
00:25:16,720 --> 00:25:21,240
Every other paragraph has something that could be offensive to the court or could be offensive to a reasonable person.

309
00:25:21,700 --> 00:25:27,300
What's the rule that you use or you would encourage a court to use to parse through what's stricken and what's not stricken?

310
00:25:27,300 --> 00:25:31,300
I would go with what the Court of Appeals has been doing for the last few years,

311
00:25:31,460 --> 00:25:36,560
which is what Professor Moore's Treatise also says, which is that if it is,

312
00:25:36,900 --> 00:25:41,000
if it could have any bearing or possible bearing upon the subject matter of litigation,

313
00:25:41,720 --> 00:25:42,520
it should not be stricted.

314
00:25:42,600 --> 00:25:42,620
That's right.

315
00:25:42,620 --> 00:25:48,360
Council, let me, let's look at the complaint in this case, and let's talk about a couple of

316
00:25:48,360 --> 00:25:51,120
paragraphs of the complaint that Mr. Trigg talked about.

317
00:25:51,120 --> 00:26:02,640
Paragraph 18, the allegation that there was a racial epithet etched into the dust on the

318
00:26:02,640 --> 00:26:03,840
gun of Ed Shields.

319
00:26:04,900 --> 00:26:16,040
If that was left there at the direction of Dr. Chapius, that obviously forms a part

320
00:26:16,040 --> 00:26:22,100
part of your claim, the forms a part of the basis for the claims, the underlying

321
00:26:22,100 --> 00:26:26,200
claims, and therefore that might well be necessary to state a claim.

322
00:26:27,740 --> 00:26:36,840
But the fact that Dr. Chapius had a pattern of, for instance, firing African-American

323
00:26:36,840 --> 00:26:44,640
employees, that is evidence of a racist intent that might support the allegation

324
00:26:44,640 --> 00:26:51,740
that he was behind, believing of the message and dust, but the fact that he may have dismissed

325
00:26:51,740 --> 00:26:59,280
African-American employees from his practice is not itself a basis for the claims in this

326
00:26:59,280 --> 00:26:59,520
case.

327
00:26:59,720 --> 00:27:00,160
Is that correct?

328
00:27:00,560 --> 00:27:01,480
That is correct, Your Honor.

329
00:27:01,720 --> 00:27:05,640
So, that would be pleading evidence, not pleading facts essential to state of claim.

330
00:27:06,340 --> 00:27:09,580
Well, perhaps I could have played it a little more eloquently, but if we would have taken

331
00:27:09,580 --> 00:27:14,540
in a step further, there would be evidence that these same phrases are what caused

332
00:27:14,540 --> 00:27:20,340
and or part of what caused Dr. Chapius and his former business partner to part ways.

333
00:27:21,380 --> 00:27:26,980
And what's critical here is that although these things might be offensive or they might look bad,

334
00:27:27,320 --> 00:27:30,000
these are the things that my client and his staff had to go through.

335
00:27:30,260 --> 00:27:38,180
So what elements of your claim was the fact of his firings, the allegation of his firings necessary to?

336
00:27:38,180 --> 00:27:41,060
What element of the claim was that necessary to?

337
00:27:41,540 --> 00:27:44,840
I think that goes to who was behind this message.

338
00:27:45,520 --> 00:27:52,460
Was the fact, the alleged fact of his treatment of his employee,

339
00:27:53,340 --> 00:27:57,860
a necessary element of his claim filed here?

340
00:27:58,760 --> 00:28:03,060
Perhaps not, but it's something that could be added

341
00:28:03,060 --> 00:28:07,080
because these were not just one person who

342
00:28:07,080 --> 00:28:12,440
It was impacted by this, but all the old staff, the left of practice, is being harassed

343
00:28:12,440 --> 00:28:14,380
again just as they were being harassed previously.

344
00:28:14,860 --> 00:28:15,000
But there are.

345
00:28:15,000 --> 00:28:21,300
Which may well be very relevant evidence at summary judgment or at trial, but it is not

346
00:28:21,300 --> 00:28:25,760
an element of the causes of action that is essential to survive 12-B6.

347
00:28:25,960 --> 00:28:32,040
So how can you say it is scandalous, or how can you say it is necessary within the meaning

348
00:28:32,040 --> 00:28:37,760
of, for instance, Moore's definition of scandalous under Rule 12 L.

349
00:28:38,340 --> 00:28:39,640
Well, I think that's where you get into it.

350
00:28:39,780 --> 00:28:40,880
Could it be?

351
00:28:41,320 --> 00:28:45,900
At this point, according to Moore's, it's not just, is it directly necessary?

352
00:28:46,200 --> 00:28:48,260
Is it directly relevant, but could it be relevant?

353
00:28:48,680 --> 00:28:50,580
I mean, could it have a bearing upon the subject matter?

354
00:28:50,680 --> 00:28:53,200
The relevant and necessary are not the same thing, right?

355
00:28:53,900 --> 00:28:54,160
Correct.

356
00:28:54,920 --> 00:28:59,680
Whether it could be relevant, but probably, but why is it necessary?

357
00:29:02,040 --> 00:29:03,880
I mean, you've already said that it probably is.

358
00:29:04,960 --> 00:29:08,500
I was saying that as far as why is it necessary, Your Honor?

359
00:29:08,920 --> 00:29:11,320
I think that there's really two answers to that.

360
00:29:11,880 --> 00:29:16,940
Number one is that it's necessary because it demonstrates the party that's engaging

361
00:29:16,940 --> 00:29:21,420
in this conduct is the same party that has done this conduct in the past.

362
00:29:21,600 --> 00:29:22,260
This is all-.

363
00:29:22,340 --> 00:29:25,640
Well, but in a complaint, all you have to say is this guy did this.

364
00:29:26,020 --> 00:29:30,860
You don't have to plead evidence that convinces a jury that he did it.

365
00:29:30,860 --> 00:29:33,460
I think you can just assert as a matter of fact that he did it.

366
00:29:35,680 --> 00:29:40,400
But in terms of the complaint, I'm not sure if the standard should be a litigant,

367
00:29:40,500 --> 00:29:45,800
should assert a complaint on the bare bones and sort of avoid things that may be necessary,

368
00:29:46,040 --> 00:29:49,240
may be relevant, may sort of color the activities.

369
00:29:49,440 --> 00:29:49,960
I think that is-

370
00:29:49,960 --> 00:29:51,920
What else does short and plain statement mean?

371
00:29:53,040 --> 00:29:57,660
I think a short and plain statement can be short and plain, but it should depict effects,

372
00:29:57,660 --> 00:29:59,980
Honestly, you need to give a back here.

373
00:30:00,000 --> 00:30:29,980
What are your characterization of what's going on? What's happening? Short and plain statement as the floor for a complaint, but I'm not aware of it. Who's all saying it's a ceiling that you aren't allowed to do anything but a short and plain statement. But what do you say? What do you say about the exact for scandalous? What do you say, for example, about paragraph 31, which is one of the paragraphs of court, the Court of Appeals struck? It talks about Dr. Chapus may have recently relapsed in alcohol and substance abuse as a known history of substance abuse.

374
00:30:29,980 --> 00:30:34,180
to use previously sanctioned for performing a surgery while using cocaine.

375
00:30:35,720 --> 00:30:42,320
What does that have to do with any of the claims you raised here?

376
00:30:42,900 --> 00:30:43,800
Well, of course.

377
00:30:44,000 --> 00:30:49,000
Well, it obviously throws great negative weight on Dr. Chapus' character.

378
00:30:50,860 --> 00:30:52,540
I have two answers for that, Your Honor.

379
00:30:52,800 --> 00:30:55,700
But first of all, the Court of Appeals came back and struck that.

380
00:30:56,320 --> 00:30:56,560
Right.

381
00:30:56,560 --> 00:31:00,360
After you put it in your complaint and the trial court struck it and the court of

382
00:31:00,360 --> 00:31:05,360
Pills left the strut. Apparently, you thought it was okay originally, so why did you

383
00:31:05,360 --> 00:31:09,720
think it was okay originally to include that? Where are you saying you actually, the

384
00:31:09,720 --> 00:31:13,620
court of Pills was correct in the strut? I think the court of Pills properly exercised

385
00:31:13,620 --> 00:31:16,600
this discretion, but as far as why we stuck it in the complaint? The court of Pills

386
00:31:16,600 --> 00:31:21,400
doesn't have any discretion, does the trial court exercise its discretion properly in the strut?

387
00:31:21,700 --> 00:31:25,380
I'm not sure the trial court actually exercised any discretion to be quite honest. I

388
00:31:25,380 --> 00:31:30,520
I think they entered an order without having properly reviewed the law or the brief because

389
00:31:30,520 --> 00:31:34,280
maybe the better way to ask it is are you today saying that that paragraph should still

390
00:31:34,280 --> 00:31:37,580
be included or do you think or are you saying that it's okay that it was triggered?

391
00:31:37,980 --> 00:31:42,680
I believe that would be okay to be stricken based on the court of appeals, well reasoned

392
00:31:42,680 --> 00:31:43,000
opinion.

393
00:31:43,680 --> 00:31:49,680
As far as why we had it in there, I think that it's very important for context to recognize

394
00:31:49,680 --> 00:31:56,760
that most reasonable people cannot fathom a situation where an ex-business partner purchases

395
00:31:56,760 --> 00:32:02,960
your medical building for whose context for the reader or for the file courts for anyone

396
00:32:02,960 --> 00:32:07,420
who basically a lot of the trial court need context when determining whether you've

397
00:32:07,420 --> 00:32:08,240
stated a claim.

398
00:32:09,120 --> 00:32:14,520
I think the trial court may need context in terms of if the other side was a file of motion

399
00:32:14,920 --> 00:32:16,220
on the pleadings for instance.

400
00:32:16,220 --> 00:32:22,200
How would paragraph 31, how would that context affect whether or not a motion on the

401
00:32:22,200 --> 00:32:24,000
pleadings would be successful?

402
00:32:25,260 --> 00:32:27,940
I'm not sure what effect how it would be successful.

403
00:32:28,240 --> 00:32:30,600
So why would the context of that sort be relevant?

404
00:32:30,880 --> 00:32:31,600
Why would it be useful?

405
00:32:32,060 --> 00:32:36,060
What purpose would it serve in a complaint?

406
00:32:36,320 --> 00:32:39,700
Whose context are you trying to provide?

407
00:32:40,480 --> 00:32:43,820
Well, I think if the example of someone moving in the next door,

408
00:32:43,820 --> 00:33:06,040
If you find out that person is abusive ex-boyfriend or abusive ex-partner, and you know that this person also has unlimited means to do what they want to purchase buildings to do very bad things, and are also acting erratically, I think that's significant, and it gives context as to why you can't just simply say that this is not something to take as a threat.

409
00:33:06,040 --> 00:33:12,060
Right, this is, we need to demonstrate that my client really saw this as being unreasonable

410
00:33:12,060 --> 00:33:14,100
and any reason you need to demonstrate to whom.

411
00:33:14,980 --> 00:33:16,520
We would need to demonstrate to the court.

412
00:33:16,900 --> 00:33:20,060
Well, but even on a motion to dismiss, for example, you would have to take those allegations

413
00:33:20,060 --> 00:33:22,340
as true, so you wouldn't have to explain them further, right?

414
00:33:23,360 --> 00:33:26,440
We wouldn't have to, your honors, but I believe that we couldn't explain them further.

415
00:33:26,660 --> 00:33:30,720
I don't believe there's any prohibition on explaining it further to make this unequivocal.

416
00:33:31,240 --> 00:33:49,700
I think there is a significant reason for having that in the original complaint, which is that it gives rise to the fact that not just would a reasonable person think that it makes sense to leave that practice, but a reasonable person would say it's absolutely critical, it's necessary, considering what you were going through, you need to leave immediately and you need to take these threats seriously.

417
00:33:51,400 --> 00:33:55,800
Council, I'm still concerned about guidance for our trial courts and exactly where they're

418
00:33:55,800 --> 00:33:56,780
to draw the line.

419
00:33:57,000 --> 00:33:59,160
So we're here on an abusive discretion standard, correct?

420
00:33:59,720 --> 00:34:00,160
Yes, Your Honor.

421
00:34:00,700 --> 00:34:07,600
Which with respect to your allegations contained in paragraph 13 through 37 of the complaint, harassment

422
00:34:07,600 --> 00:34:11,280
and hostilities, I think is the title of that provision of your complaint.

423
00:34:11,960 --> 00:34:19,200
Would you agree or disagree that taking out paragraph 13 that Mr. Trigg referred to and

424
00:34:19,200 --> 00:34:26,560
leaving out, of course, 31, which the trial court struck, those, that specific element

425
00:34:26,560 --> 00:34:30,700
of your claim still survives a motion to dismiss, prepare the snake line, correct?

426
00:34:31,820 --> 00:34:32,600
I would hope so, Your Honor.

427
00:34:33,480 --> 00:34:33,600
Okay.

428
00:34:34,060 --> 00:34:38,880
So back to questions that have been asked repeatedly, it's an abusive discretion standard

429
00:34:38,880 --> 00:34:44,060
and I'm not sure I got your answer on relative to paragraph 31, do you believe the trial

430
00:34:44,060 --> 00:34:48,540
of use their discretion in striking paragraph 31.

431
00:34:49,200 --> 00:34:51,960
I don't believe it didn't in that situation on our own.

432
00:34:52,720 --> 00:34:56,640
And if that's the case, then they would not have exercised

433
00:34:56,640 --> 00:34:59,200
on abuse of discretion to strike paragraph 13 either.

434
00:34:59,640 --> 00:35:02,740
I believe striking paragraph 13 where we discussed the fact that

435
00:35:02,740 --> 00:35:03,960
I'm sorry, paragraph 18.

436
00:35:04,480 --> 00:35:06,780
Paragraph 18 is one of the street rules we were referring to.

437
00:35:07,140 --> 00:35:10,940
And particularly night, which is an explanation for paragraph 18.

438
00:35:14,110 --> 00:35:19,510
My concern is that under the circumstances of this case with abusive discretion being

439
00:35:19,510 --> 00:35:24,310
the standard that we're presented with, what are we going to tell right and an opinion

440
00:35:24,310 --> 00:35:27,830
that is going to give clear guidance to the trial bench about where the line should be

441
00:35:27,830 --> 00:35:29,270
drawn relative to these motions?

442
00:35:29,910 --> 00:35:36,410
I think the line should be drawn in your honor as far as if matters should be stricken only

443
00:35:36,410 --> 00:35:39,550
if you have no possible bearing upon the subject matter of the litigation.

444
00:35:39,550 --> 00:35:46,810
I mean, that's the line that Federal Court's treatises have regularly drawn for the irrelevant

445
00:35:46,810 --> 00:35:50,750
and pertinent redundant, for scandalous.

446
00:35:53,170 --> 00:36:00,690
So if it is relevant to the case that somebody is accused of being a racist, it's a racial

447
00:36:00,690 --> 00:36:09,070
race because, or that they use bad language, can you, if you have them on take cursing up and

448
00:36:09,070 --> 00:36:15,010
down and calling the courts, horrible names, can you put all of that in your complaint

449
00:36:15,010 --> 00:36:21,070
on the theory that who cares, it's somehow not entirely relevant?

450
00:36:22,470 --> 00:36:27,030
I think in that situation, you should be able to put that in your complaint if that's what

451
00:36:27,030 --> 00:36:29,210
you're engaging in, and that's their conduct.

452
00:36:29,210 --> 00:36:38,510
But let's say I sell Justice Blackwell a ticket to the Georgia Auburn that is in fact a counterfeit.

453
00:36:39,310 --> 00:36:46,270
And he sues me for fraud and he puts in the complaint just to show my reputation for

454
00:36:46,270 --> 00:36:49,170
being a bad actor that I'm a child and a lesting serial killer.

455
00:36:49,910 --> 00:36:52,850
Is that something you can put in the complaint?

456
00:36:53,310 --> 00:36:53,910
I don't believe so.

457
00:36:53,910 --> 00:36:54,090
Why not?

458
00:36:54,650 --> 00:36:57,830
because I don't believe it has any possible bearing on a subject matter of

459
00:36:57,830 --> 00:37:04,930
litigation. Why? Isn't it context? In that situation I don't believe so but if

460
00:37:04,930 --> 00:37:09,330
you had previously sold him counterfeits before and he had been vain bruised

461
00:37:09,330 --> 00:37:13,630
before I think that could be useful and that could possibly have bearing upon

462
00:37:13,630 --> 00:37:19,590
a subject matter of litigation. So what's the why is would the cocaine abuse and

463
00:37:19,590 --> 00:37:22,350
any alcohol abuse, be context here that's relevant,

464
00:37:22,630 --> 00:37:25,570
any more than the allegation about

465
00:37:26,030 --> 00:37:27,350
child molestation and serenity.

466
00:37:28,570 --> 00:37:31,110
I think that's taking things up a notch

467
00:37:31,430 --> 00:37:32,970
in our sit circumstance.

468
00:37:33,650 --> 00:37:36,310
Most reasonable people, they don't engage in situations

469
00:37:36,310 --> 00:37:38,930
where you hire people posing as police officers

470
00:37:39,230 --> 00:37:40,870
to come to your house at 5 a.m.

471
00:37:41,550 --> 00:37:44,090
and basically try to intimidate you to leave.

472
00:37:44,670 --> 00:37:46,510
That's something that's absolutely egregious.

473
00:37:46,510 --> 00:37:57,570
So you alleged that, alleged that, what is cocaine and alcohol abuse in the past have to do with that, other than just trying to tarnish reputation?

474
00:37:58,170 --> 00:38:12,550
Well, if an individual is trying to intimidate you, I believe that's actionable, but if this individual who's trying to intimidate you is also abusing alcohol and drugs, I believe you might think that actions might be a little more rash, you might take threats a little more seriously.

475
00:38:12,550 --> 00:38:21,430
And you might question whether or not this person will take things even further considering the extremely high level of improper conduct they've already engaged in.

476
00:38:30,310 --> 00:38:40,480
Ultimately, your honors, I believe that the Court of Appeals, so what is the test for scandalous that you're saying we should apply?

477
00:38:41,400 --> 00:38:43,140
I'm still not entirely clear on that.

478
00:38:44,200 --> 00:38:44,780
What does it mean?

479
00:38:44,780 --> 00:38:52,320
I think scandal will be the Black Slot Victionary and I think that their definition is a proper

480
00:38:52,320 --> 00:39:00,340
definition which is that the matter is both grossly distasteful or defamatory and irrelevant

481
00:39:00,340 --> 00:39:00,940
to the action.

482
00:39:01,300 --> 00:39:04,600
But the first three words of the statute already kick out anything that's irrelevant.

483
00:39:05,480 --> 00:39:06,960
So what does scandal is add?

484
00:39:08,320 --> 00:39:12,280
If you already kicked out everything that's irrelevant, there's nothing left for scandalous

485
00:39:12,280 --> 00:39:15,820
to do if it only applies to a subset of irrelevant facts.

486
00:39:16,020 --> 00:39:20,300
Well, I think that Bull 12-Beth actually has some useful significance, and for instance,

487
00:39:20,860 --> 00:39:24,400
in the former case, when the deliverance referred to the other deliverance is Judas.

488
00:39:25,080 --> 00:39:26,520
It had absolutely nothing to do with the case.

489
00:39:26,740 --> 00:39:31,460
It simply besmirched one of the characters, but in that situation, the court said, you

490
00:39:31,460 --> 00:39:31,640
know what?

491
00:39:31,820 --> 00:39:32,460
This is scandalous.

492
00:39:33,060 --> 00:39:34,480
It's grossly distasteful or abandoned.

493
00:39:34,480 --> 00:39:35,560
But it would also be immaterial.

494
00:39:35,780 --> 00:39:37,560
So it would be excluded under one of the other three words.

495
00:39:38,000 --> 00:39:41,700
What isn't excluded by the first three words of the statute that is excluded?

496
00:39:41,700 --> 00:39:46,980
as scandalous. And if your answer is nothing, then what you're saying is the word scandalous

497
00:39:46,980 --> 00:39:53,300
is just surplusage. Well, your honor in the situation where something is, if I may continue.

498
00:39:54,100 --> 00:40:01,140
In the situation where, let's just say that in that preem, the phrase was referred to as a single

499
00:40:01,140 --> 00:40:08,520
time rather than multiple times. And perhaps in that situation it actually had some sort of other

500
00:40:08,520 --> 00:40:14,840
back that was tied into the case and matter didn't have to necessarily be simply

501
00:40:15,380 --> 00:40:20,120
redundant to be stricken but in this situation it would also be one in which

502
00:40:20,120 --> 00:40:24,240
the matter is both growth leads to stays forward and the advantageories as well

503
00:40:24,240 --> 00:40:28,220
as being redundant. Thank you Mr. Chair there. Thank you Mr. Chair.

504
00:40:41,020 --> 00:40:41,760
May I please

505
00:40:41,760 --> 00:40:47,880
the Court? We believe the appropriate standard is akin to rule four and three. We need

506
00:40:47,880 --> 00:40:50,060
future guidance, practitioners of future guidance,

507
00:40:50,540 --> 00:40:53,480
trial for future guidance, these lawyers who were admitted

508
00:40:53,480 --> 00:40:55,260
to practice before the bar into being

509
00:40:55,260 --> 00:40:58,120
lead your guidance to ensure that the forum

510
00:40:58,120 --> 00:41:01,340
and dignity associated with our judicial system

511
00:41:01,340 --> 00:41:02,700
is protected and preserved.

512
00:41:03,300 --> 00:41:04,160
Thank you very much.

513
00:41:06,200 --> 00:41:06,780
May it begin?

514
00:41:08,940 --> 00:41:10,060
May it please record?

515
00:41:11,740 --> 00:41:16,980
On August 18, 2013, while at a pellant,

516
00:41:16,980 --> 00:41:26,940
Coleman Crouch's apartment. Thomas Kelly took hit block 21 and opened fire on

517
00:41:27,660 --> 00:41:35,220
Ruben Miranda and Shaland McConnell who were there to see Cole Crouch to settle

518
00:41:35,220 --> 00:41:44,100
the debt and in opening fire firing at least eight shots Thomas Kelly murdered both

519
00:41:44,100 --> 00:41:53,780
of those men. Soon enough, the next morning, Cole Crouch was found and interviewed, initially

520
00:41:53,780 --> 00:41:59,440
evasive, and then admitted what Thomas Kelly had done while they were at the apartment.

521
00:42:01,160 --> 00:42:08,720
Expressed his shock, his panic, and admitted having worked together to move the bodies and

522
00:42:08,720 --> 00:42:13,580
and hide the evidence, and in fact took law enforcement

523
00:42:13,580 --> 00:42:17,580
to the location on Thomas Kelly's family's property

524
00:42:17,580 --> 00:42:19,220
where those bodies were buried.

525
00:42:20,700 --> 00:42:23,800
And Coleman Crouch told law enforcement,

526
00:42:25,460 --> 00:42:27,800
I didn't want this to happen.

527
00:42:28,720 --> 00:42:30,540
This was Thomas Kelly's doing.

528
00:42:31,840 --> 00:42:34,920
And soon enough, Thomas Kelly and his girlfriend,

529
00:42:34,920 --> 00:42:38,580
Christen Bethune, who was also at the apartment,

530
00:42:39,240 --> 00:42:41,620
were found over at Gwyneth Community College

531
00:42:41,620 --> 00:42:44,960
and interviewed, where they had been together

532
00:42:45,480 --> 00:42:49,100
from the evening of this event on Sunday to the next day.

533
00:42:50,380 --> 00:42:53,240
Christen Bethune, initially evasive,

534
00:42:54,140 --> 00:42:56,540
that admitted having been there

535
00:42:56,540 --> 00:42:59,580
when her boyfriend Thomas Kelly opened fire,

536
00:42:59,580 --> 00:43:08,540
but relayed that this was Cold Crouch's idea and Thomas Kelly initially said

537
00:43:08,540 --> 00:43:15,680
the same thing, but in a lengthy gut wrenching, gut wrenching videotaped interview

538
00:43:15,680 --> 00:43:22,440
where law enforcement implored him, why? Why did you do this?

539
00:43:22,440 --> 00:43:36,620
Thomas Kelly went off and explained, through his demeanor in his words, a sad and horrific and sick mental illness.

540
00:43:36,940 --> 00:43:43,740
He began by describing in fourth grade, witnessing his father's repeated suicide attempts.

541
00:43:43,740 --> 00:43:51,360
And when he was 17 years old, the actual suicide of his father that changed his life forever,

542
00:43:51,820 --> 00:43:57,680
that was done with the exact same gloctomy views to murder these men.

543
00:43:59,360 --> 00:44:06,740
He described a bizarre racial animus that he had with African Americans, with Hispanic

544
00:44:06,740 --> 00:44:13,380
people, with some crazy belief that the Turks were going to be invading Sweden,

545
00:44:13,380 --> 00:44:17,540
to be his origin, and that he had this calling,

546
00:44:17,900 --> 00:44:20,540
this adhering, this need, this calling

547
00:44:20,800 --> 00:44:26,180
to take care of this history through this killing.

548
00:44:28,000 --> 00:44:30,520
And at trial, Thomas Kelly testified.

549
00:44:31,160 --> 00:44:33,120
No one told him to do this.

550
00:44:33,960 --> 00:44:36,360
He did it because he felt he had to.

551
00:44:37,160 --> 00:44:40,580
So there, your arms, was the defense.

552
00:44:41,420 --> 00:44:46,220
Why Thomas Hill and Kelly killed these two men?

553
00:44:46,860 --> 00:44:58,500
A defense that was already developed with mental health disorders that will later reveal to be so severe that you can see them on an MRI.

554
00:45:00,000 --> 00:45:09,060
Council, low damage of a brain lesion. So, of course, trial counsel began the trial in their

555
00:45:09,060 --> 00:45:15,580
opening explaining, after Thomas Kelly had pled guilty, after Christopher Thune had pled guilty,

556
00:45:16,700 --> 00:45:22,760
after Justice Evans, another friend of Cole and Thomas Kelly's that were there at the

557
00:45:22,760 --> 00:45:29,080
department and Amy, his girlfriend, after they'd all fled and been called to testify.

558
00:45:29,970 --> 00:45:32,180
The defendant's opening was clear.

559
00:45:34,020 --> 00:45:45,460
This was Thomas Kelly's irrational, impulsive, anger-filled, likely delusional compulsion to

560
00:45:45,460 --> 00:45:54,700
kill. And when the defense counsel began to cross examine Thomas Kelly to elicit that

561
00:45:54,700 --> 00:45:57,640
sad and heart-wrenching history,

562
00:45:59,760 --> 00:46:03,520
the court foreclosed that cross-famination, the court

563
00:46:03,520 --> 00:46:11,500
said, you're not getting into that. And the defense counsel continued to try to argue to

564
00:46:11,500 --> 00:46:18,780
the trial court, why the term Swedish animus could somehow be relevant, and fair enough

565
00:46:18,780 --> 00:46:25,460
the trial court could not discern a relevance, could not discover, could not figure out

566
00:46:25,850 --> 00:46:32,900
what this defense council was trying to do, because defense council had failed to develop

567
00:46:32,900 --> 00:46:39,700
the record with a proper, emotional limit, providing the trial court with that information sufficient

568
00:46:39,700 --> 00:46:48,100
for the judge to make a rational sound decision on the relevance of this evidence that supported the

569
00:46:48,100 --> 00:46:57,040
defendants, the appellants, sold the fence at trial. And it was an incredible amount of evidence

570
00:46:57,040 --> 00:47:05,120
that was prohibited from that trial. A family history of Thomas Kelly's father, his paternal grandfather,

571
00:47:05,120 --> 00:47:09,200
and fathered as paternal grandmother, so psychiatrically ill

572
00:47:10,010 --> 00:47:13,720
that they had all undergone electroconvulsive therapy.

573
00:47:15,040 --> 00:47:17,660
Auditorial hallucinations of his father

574
00:47:17,660 --> 00:47:21,740
so rampant that it led to his suicide.

575
00:47:24,030 --> 00:47:27,550
And Thomas Kelly's treatment, or mental health

576
00:47:27,550 --> 00:47:32,590
disorders, only four weeks after this 17-year-old's father

577
00:47:32,590 --> 00:47:35,290
had killed himself, and treatment

578
00:47:35,290 --> 00:47:38,850
and diagnosed each by those mental health practitioners

579
00:47:39,690 --> 00:47:40,770
that he was bipolar.

580
00:47:41,750 --> 00:47:44,350
That he had such significant mental illness

581
00:47:44,350 --> 00:47:46,470
that he was treated in a difficult condition.

582
00:47:47,590 --> 00:47:52,370
Council, you assert this claim in a couple of different ways.

583
00:47:52,830 --> 00:47:56,370
You assert it as an abusive discretion claim,

584
00:47:57,490 --> 00:47:59,990
directly, you know, direct air by the trial court.

585
00:48:00,210 --> 00:48:02,370
And then you also assert it as ineffective assistance.

586
00:48:03,110 --> 00:48:09,190
Your first ineffective assistance claim is failing to provide sufficient evidence that the

587
00:48:09,190 --> 00:48:14,550
troughport could have understood that the testimony about Sweden was relevant.

588
00:48:14,850 --> 00:48:21,870
Given that it was, I don't know from this record how the troughport could have figured

589
00:48:21,870 --> 00:48:26,870
out how this Sweden-related testimony was relevant, how could that be an abuse of discretion

590
00:48:26,870 --> 00:48:27,630
by the troughport?

591
00:48:27,630 --> 00:48:30,230
Well, we have flooded in both ways.

592
00:48:30,630 --> 00:48:31,210
We agree.

593
00:48:31,750 --> 00:48:33,910
What we're complaining about, of course,

594
00:48:34,190 --> 00:48:37,150
is the order on the motion for a new trial,

595
00:48:37,470 --> 00:48:40,650
where now a different trial judge,

596
00:48:40,750 --> 00:48:42,810
because the trial judge who had presided

597
00:48:42,810 --> 00:48:44,950
at the trial is cases and retired.

598
00:48:45,630 --> 00:48:48,150
So a new trial judge was presiding

599
00:48:48,150 --> 00:48:49,830
over the motion for new trial hearing.

600
00:48:50,290 --> 00:48:54,090
And what this court found was to support the decision

601
00:48:54,090 --> 00:48:55,670
by the initial trial court.

602
00:48:55,670 --> 00:48:58,530
didn't argue that didn't have that trial court,

603
00:48:58,690 --> 00:48:59,590
didn't have enough information.

604
00:49:00,330 --> 00:49:05,410
In fact, an emotional for new trial said that Thomas Callie's

605
00:49:05,410 --> 00:49:09,010
mental health did it, quote, absolve him

606
00:49:09,010 --> 00:49:11,090
of his own criminal responsibility.

607
00:49:11,710 --> 00:49:13,610
So it couldn't absolve the defendant's.

608
00:49:13,890 --> 00:49:17,150
Can I, questions along that line?

609
00:49:17,290 --> 00:49:18,710
I mean, it sounds like why you plotted

610
00:49:18,710 --> 00:49:20,730
in the alternative, you acknowledged

611
00:49:20,730 --> 00:49:23,410
that the trial court didn't really get it wrong

612
00:49:23,410 --> 00:49:28,610
trial given what was presented to the trial court. The real claim is that trial

613
00:49:28,610 --> 00:49:33,790
counsel didn't perform effectively and given the trial court what you think was

614
00:49:33,790 --> 00:49:40,290
necessary. I think that's fair although I do point out in the brief that there are

615
00:49:40,290 --> 00:49:45,190
several instances where there were questions that I would argue we're not as

616
00:49:47,990 --> 00:49:53,230
But instead went straight to questions of his own mental illness.

617
00:49:53,650 --> 00:49:57,790
The use of the same Glock 21 as his father used to lead suicide.

618
00:49:57,790 --> 00:50:03,910
And possibly a trial judge who would be more open to the relevant standard,

619
00:50:03,910 --> 00:50:06,050
which the law holds.

620
00:50:06,310 --> 00:50:07,730
Well, it's not just relevance.

621
00:50:08,390 --> 00:50:11,530
It's also rule four, three, you have to pass.

622
00:50:11,830 --> 00:50:12,770
Not just relevance.

623
00:50:13,770 --> 00:50:19,910
Well, I believe that Rule 401 very clearly makes this relevant evidence.

624
00:50:20,050 --> 00:50:25,730
And, Rule 403 doesn't hold when you apply it to the significance of this evidence.

625
00:50:26,190 --> 00:50:29,210
This does not substantially outweigh a financial effect.

626
00:50:29,550 --> 00:50:29,870
All right.

627
00:50:30,050 --> 00:50:33,850
On the end effect of the assistance side, a couple questions.

628
00:50:34,090 --> 00:50:39,090
One is, my understanding is, in the mental health evidence, have that been admitted?

629
00:50:39,090 --> 00:50:44,750
There would be plenty of stuff that might show that Mr. Kelly had serious mental

630
00:50:44,750 --> 00:50:51,990
illness, but there would also be statements he made along the way in some of that

631
00:50:51,990 --> 00:50:58,110
material in which he said, unlike what you, your trial counsel, got him to testify

632
00:50:58,110 --> 00:51:03,650
trial where he recanted, you would be able to show earlier statements where he said

633
00:51:03,650 --> 00:51:08,410
that Mr. Crouch came up with the plan and directed him to do it.

634
00:51:09,170 --> 00:51:15,950
So that would significantly undermine a defense in which you get Mr. Kelly at trial to say,

635
00:51:16,330 --> 00:51:21,050
to recant, if you could then show that earlier in an in a mental health setting,

636
00:51:21,390 --> 00:51:25,950
he actually said exactly what the state was claiming it's there in the case was.

637
00:51:26,490 --> 00:51:29,670
Okay, why isn't that then a strategic call?

638
00:51:29,670 --> 00:51:34,210
comes up a lot in death penalty cases where there's mitigating evidence, but in

639
00:51:34,210 --> 00:51:37,530
that same mitigating evidence, there's a lot of aggravating evidence, and we

640
00:51:37,530 --> 00:51:41,530
generally say, that's a call for lawyers to make on this.

641
00:51:42,010 --> 00:51:47,090
And that's actually what the trial attorney, a defense attorney who had many murder

642
00:51:47,090 --> 00:51:52,190
cases had to deal with during our hearing on the amended emergency trial. So when

643
00:51:52,190 --> 00:51:59,530
we talked with that trial attorney, he made clear using his words, it never

644
00:51:59,530 --> 00:52:02,510
cross to his mind, that question wouldn't be admissible.

645
00:52:02,770 --> 00:52:05,990
First, it doesn't really matter what that lawyer thought.

646
00:52:06,230 --> 00:52:08,770
The question is what a reasonable lawyer would have done,

647
00:52:09,450 --> 00:52:10,430
under strict.

648
00:52:11,010 --> 00:52:16,310
And so the question I have is, can you not say that any reasonable

649
00:52:16,810 --> 00:52:19,750
criminal defense lawyer would have made the strategic call,

650
00:52:20,490 --> 00:52:24,130
I'd rather proceed with this guy who is recanting a trial

651
00:52:24,450 --> 00:52:27,870
and saying he did it and my client didn't have anything to do

652
00:52:27,870 --> 00:52:33,510
with it. Or would I rather try to show that he's crazy, but along with showing

653
00:52:33,510 --> 00:52:38,030
he's crazy, the state is going to be able to show that earlier he said that

654
00:52:38,030 --> 00:52:45,360
my client told them to do it. I agree with you that the reasonable attorney

655
00:52:45,360 --> 00:52:50,820
standard is the standard for one of the strictly wrongs, and that would be

656
00:52:50,820 --> 00:52:56,900
whether it was harm. But the first question is, was this a strategic decision by

657
00:52:56,900 --> 00:53:03,060
Now, the strategic, the first promise strictly, the decision performance, we have said

658
00:53:03,060 --> 00:53:08,400
over and over and over again, the question is, what a reasonable lawyer would do.

659
00:53:08,800 --> 00:53:13,600
You don't get the call trial counsel later on who says, I blew it and you and went.

660
00:53:14,060 --> 00:53:17,260
The question is, what a reasonable lawyer would have done.

661
00:53:17,620 --> 00:53:23,580
And so what we have to decide is, could any reasonable lawyer have made that strategic

662
00:53:23,580 --> 00:53:29,100
decision. Not was it actually made? Not that the lawyer in hindsight say testify about

663
00:53:29,100 --> 00:53:34,060
whether they considered it. And so what do you, is it, could any reasonable

664
00:53:34,060 --> 00:53:39,920
lawyer have looked at this and said, this is a hard one, but I think I'm better off

665
00:53:39,920 --> 00:53:45,540
with my recanting the state's main witness who's recanting here, saying exactly what I

666
00:53:45,540 --> 00:53:52,620
would like him to say on direct. But this trial counsel, Justice Nogyes, did not say,

667
00:53:52,620 --> 00:53:58,400
I didn't get into that stuff because I made a strategic decision that the harm outweigh

668
00:53:58,400 --> 00:53:58,840
benefit.

669
00:53:59,020 --> 00:54:00,300
But that doesn't matter.

670
00:54:00,800 --> 00:54:02,400
It's an objective standard.

671
00:54:02,800 --> 00:54:04,360
That was Justice Namie's question.

672
00:54:04,620 --> 00:54:11,180
So the objective question is not what this guy said, but would every other competent lawyer

673
00:54:11,180 --> 00:54:14,880
have to have said exactly the same thing, or could a competent lawyer have made this

674
00:54:14,880 --> 00:54:15,280
decision?

675
00:54:15,580 --> 00:54:21,660
I'm agreeing with the standard, Your Honor, but what I'm disagreeing with is the factual

676
00:54:21,660 --> 00:54:25,200
basis of what you're applying into.

677
00:54:25,860 --> 00:54:31,380
This trial attorney acknowledged that there was a cost-benefit analysis.

678
00:54:32,120 --> 00:54:39,000
This trial attorney made the strategic decision, which no one is arguing is unreasonable.

679
00:54:39,640 --> 00:54:43,040
Now I'm not arguing it's unreasonable, but the state's not arguing it's unreasonable.

680
00:54:43,700 --> 00:54:49,820
What we're saying is we have to rely under the case law first and foremost with the decision

681
00:54:49,820 --> 00:54:56,880
they made and then announced an analyzing. In this instance there are pieces of the state's

682
00:54:56,880 --> 00:55:02,340
case that they were concerned about bringing out this trial council was concerned because

683
00:55:02,340 --> 00:55:10,900
just like the state's videotape interview of Thomas Kelly, Thomas Kelly does say, initially

684
00:55:10,900 --> 00:55:19,160
I heard Cole tell me to do it. But later on those on and on about why he doesn't believe

685
00:55:19,160 --> 00:55:28,480
that's the case anyway. So when the trial attorney says, very clearly, I have no strategic

686
00:55:28,480 --> 00:55:34,740
reason not to have called Dr. Schaefer. Unfortunately, our case law just says over and

687
00:55:34,740 --> 00:55:41,980
over and Strickland itself, if you read Strickland, the leading US Supreme Court case, says it is a

688
00:55:41,980 --> 00:55:47,820
reasonable lawyer question. It is not a question of the actual lawyer. It is what a

689
00:55:47,820 --> 00:55:51,560
reasonable lawyer would do. And I hear you saying that it is, it was a reasonable

690
00:55:51,560 --> 00:55:57,660
call. You disagree with it. Trial counsel later said maybe he disagreed with it.

691
00:55:58,300 --> 00:56:02,200
You know, you're just as nice what I disagree with is the antecedent to it.

692
00:56:02,700 --> 00:56:10,840
I'm not disagreeing with the standard of review. You're assuming that it, whether it was

693
00:56:10,840 --> 00:56:16,720
a reasonable call, is an issue of whether or not this trial lawyer made some decision

694
00:56:16,720 --> 00:56:18,200
not to introduce the subject.

695
00:56:18,300 --> 00:56:27,160
Now, my it, my it question is, it is could you or me, or any other criminal defense

696
00:56:27,160 --> 00:56:32,780
lawyer in Georgia, use competent, reasonably have looked at the situation, putting

697
00:56:32,780 --> 00:56:37,460
aside what actually happened with the trial lawyer, the Representative, Mr. Krauch.

698
00:56:37,860 --> 00:56:42,560
Could any reasonable lawyer have looked at the situation and said, I think it's better.

699
00:56:42,560 --> 00:56:47,400
I think with all of the information you later developed at the motion for new trial

700
00:56:47,400 --> 00:56:54,540
hearing and said, I think it's better off going with this recanting witness and whatever

701
00:56:54,540 --> 00:56:58,360
I can get in about his mental illness than putting on all this other mental illness

702
00:56:58,360 --> 00:57:05,160
evidence which comes along with his statement earlier that Crouch told him to do it.

703
00:57:07,960 --> 00:57:08,940
Justice Nomias.

704
00:57:09,600 --> 00:57:11,260
What's the answer to that question?

705
00:57:11,620 --> 00:57:12,140
The answer is.

706
00:57:12,140 --> 00:57:18,060
that any reasonable order made that decision, not any other situation, just in any

707
00:57:18,060 --> 00:57:18,160
reason.

708
00:57:18,160 --> 00:57:20,960
Any reasonable attorney could have made either of those decisions.

709
00:57:20,960 --> 00:57:22,840
Well, then, then you're going to lose.

710
00:57:23,280 --> 00:57:30,160
Then this reasonable attorney, though, made it very clear that we begin, as the Supreme

711
00:57:30,160 --> 00:57:36,660
Court does, repeatedly by asking, the burden is on the defense counsel to call the trial

712
00:57:37,220 --> 00:57:44,180
and the question of whether or not a decision was strategic is the first hurdle.

713
00:57:44,780 --> 00:57:51,360
If the trial council says it was strategic and we want to show that was an unreasonable strategic decision,

714
00:57:51,780 --> 00:57:55,480
then we've got that kind of face. What's good for the goose, it's good for the gander.

715
00:57:55,880 --> 00:58:02,140
We're not allowed to come before your honor and I've been here many times and attempted to do it.

716
00:58:02,140 --> 00:58:10,000
It's impossible for me to say to this court, look, ignore that strategic decision

717
00:58:10,000 --> 00:58:12,560
stuff. You always begin with it.

718
00:58:12,700 --> 00:58:17,160
Does it matter whether trial counsel characterizes his decision or his course

719
00:58:17,160 --> 00:58:18,420
of action as strategic?

720
00:58:19,080 --> 00:58:24,520
It matters in the initial inquiry to decide, first of all, how we're going to take

721
00:58:24,520 --> 00:58:26,940
as if you had come in and said, I'm going to do it.

722
00:58:26,940 --> 00:58:33,400
Then there is absolutely no grounds upon which the state to argue it was a strategic

723
00:58:33,940 --> 00:58:34,520
decision.

724
00:58:35,060 --> 00:58:40,140
Well, the 11th Circuit has said something very different about what a strategic

725
00:58:40,140 --> 00:58:41,100
decision is.

726
00:58:41,180 --> 00:58:47,400
They had said, for instance, in the Chandler in bank case, they said, what is strategy

727
00:58:47,940 --> 00:58:53,600
is the course of action that a lawyer decides to take that he is neither compelled

728
00:58:53,600 --> 00:58:55,620
nor forbidden by law to take.

729
00:58:55,620 --> 00:59:01,520
So wherever a lawyer has discretion to do something or not do something, if he does it or does not do that,

730
00:59:01,820 --> 00:59:05,980
that is his strategy, whether he calls it strategy or not, whether he's thought it through or not,

731
00:59:06,200 --> 00:59:08,380
that is his strategy. How do you respond to that?

732
00:59:08,720 --> 00:59:16,940
In this instance, he was forbidden by the trial court to do a thing he believed to be the only defense in this case.

733
00:59:17,320 --> 00:59:20,000
That everyone argued was the only defense in this case.

734
00:59:20,000 --> 00:59:28,640
And this stuff was relevant and admissible and it's absence had a chilling effect and made the sole defense impossible to receive.

735
00:59:28,900 --> 00:59:30,920
I'd like to reserve the rest of my time. Thank you.

736
00:59:31,240 --> 00:59:31,900
Thank you, Ms. Ho.

737
00:59:45,060 --> 00:59:46,460
Chief Justice Melville.

738
00:59:49,120 --> 00:59:55,940
I want to be in kind of the second issue that Justice Y'all are questioning about.

739
00:59:55,940 --> 00:59:57,860
And that is the...

740
01:00:00,000 --> 01:00:29,640
In fact, this is the council in strict, and what you have asked council about is the issue in this case. Is this ineffective or one of this a strategic decision? In the lecture for new trial, trial attorney, Mr. Grude said in regards to calling Dr. Schwartz, Darcy Schwartz, who did the evaluation on behalf of the court. He said, I am not calling her because,

741
01:00:29,640 --> 01:00:35,340
because what was said to her by Mr. Kelly would harm my client.

742
01:00:37,800 --> 01:00:42,100
During the trial of Kristen Beeson, who is the girlfriend of the shooter, Mr. Kelly,

743
01:00:42,580 --> 01:00:49,440
gave me a detailed statement of what a firm about how it was planned, how the appellate

744
01:00:49,440 --> 01:00:56,200
playing the acts, what was done, about going to buy a tarp, how the appellate gave money

745
01:00:56,200 --> 01:01:02,400
to Mr. Kelly and Mr. Kelly to get by a talk from Walmart to lay out on the ground, how

746
01:01:02,400 --> 01:01:08,180
the victim, how the appellate to the victim and then Mr. Kelly were to walk into the house

747
01:01:08,180 --> 01:01:09,940
to kind of set up this emergency.

748
01:01:11,220 --> 01:01:16,740
The Christians even gave that very specific detail in a statement and also during their testimony

749
01:01:16,740 --> 01:01:17,380
during trial.

750
01:01:18,320 --> 01:01:26,000
This is the same exact information that Mr. Kelly gave to Dr. Shores and to Dr. Sachi who was

751
01:01:26,000 --> 01:01:29,320
hired by this trial council, Mr. White.

752
01:01:30,020 --> 01:01:33,060
These same exact facts were given to both of them.

753
01:01:34,540 --> 01:01:37,700
Trial attorney, or trial attorney during the court, Mr.

754
01:01:37,860 --> 01:01:40,580
Bruce, said, in his most pretty trial,

755
01:01:41,100 --> 01:01:44,160
I made a decision not to call her Dr. Schwarz,

756
01:01:44,560 --> 01:01:45,820
because that would harm my client.

757
01:01:46,860 --> 01:01:50,180
That would have been good because, as council has said,

758
01:01:51,000 --> 01:01:52,960
the only person who came into court who

759
01:01:52,960 --> 01:01:59,960
You said a complete detailed statement of what happened that night, where Mr. Kelly's

760
01:01:59,960 --> 01:02:00,200
girlfriend.

761
01:02:01,120 --> 01:02:05,900
That is obvious, as you see, you can assume there is no doubt about that.

762
01:02:06,280 --> 01:02:12,800
Looking back, as this court has said in Strickland and cases before this court, we will do

763
01:02:12,800 --> 01:02:12,940
this.

764
01:02:13,140 --> 01:02:17,640
You do not look back and say, well, would you have done it different in hindsight?

765
01:02:18,240 --> 01:02:19,280
That is not a standard.

766
01:02:19,280 --> 01:02:24,640
the standard is a competent attorney, make that same decision.

767
01:02:25,360 --> 01:02:30,760
I would argue to your honors that obviously a competent attorney would not want to bring

768
01:02:30,760 --> 01:02:36,620
in two expert opinions, that if that was called by Council, by Council, by Council,

769
01:02:36,740 --> 01:02:42,700
trial council, that then, all across, I would be able to bring out of them that, that

770
01:02:42,700 --> 01:02:50,800
that doctor, work or work, what a part of the matter, that is just plain strategic decision.

771
01:02:52,840 --> 01:02:58,660
Council did not show how to act, was it effective, in regards to, first.

772
01:02:58,740 --> 01:03:09,260
Council, let me, let me ask, did Defense Council attempt to elicit testimony during Mr. Kelly's

773
01:03:09,260 --> 01:03:13,980
cross-examination about his mental health status.

774
01:03:14,200 --> 01:03:20,160
The question, to an extent, I would say, yeah, the question, the one question I believe

775
01:03:20,160 --> 01:03:26,520
it was asked regarding some mental health was, do you suffer from bipolar depression?

776
01:03:26,900 --> 01:03:32,480
Page 702 of the transcript at that time where you being a bipolar, I was, and then there

777
01:03:32,480 --> 01:03:32,940
was an objection.

778
01:03:33,240 --> 01:03:33,900
Absolutely, yes.

779
01:03:34,160 --> 01:03:39,140
And as I understand the transcript relative to Mr. Kelly's testimony, the court limited

780
01:03:39,140 --> 01:03:45,500
I wanted to question two questions about bias issues concerning turks maybe and racial bias.

781
01:03:46,520 --> 01:03:49,960
But prohibited any further inquiry of Mr. Kelly's mental status.

782
01:03:50,140 --> 01:03:50,520
Is that correct?

783
01:03:51,200 --> 01:03:51,780
Does that matter?

784
01:03:52,660 --> 01:03:56,420
In an analysis strategy and an ineffective assistance context?

785
01:03:56,820 --> 01:03:59,280
I don't think it in regards to ineffective.

786
01:03:59,600 --> 01:03:59,720
Yes.

787
01:04:00,080 --> 01:04:07,900
I don't think it goes in regards to ineffective because the trial attorney and appellate counsel

788
01:04:07,900 --> 01:04:13,620
So, can I share how that prejudice, Mr. Diapalli in this case.

789
01:04:14,360 --> 01:04:20,460
The fact that someone has bopolar depression, unfortunately that is an issue that many suffer.

790
01:04:21,140 --> 01:04:26,940
But there was no evidence or no information brought forward to the court, no proper trial

791
01:04:26,940 --> 01:04:33,820
counsel, or proper by appellate counsel, how that would somehow affect and make Mr. Kelli

792
01:04:33,820 --> 01:04:34,440
do the agony.

793
01:04:34,440 --> 01:04:39,220
So, you're getting into the issue of prejudice, but I want to go back to what Ms.

794
01:04:39,260 --> 01:04:45,640
Ho left us with as she left up here, which was it can't be a trial strategy if I was never

795
01:04:45,640 --> 01:04:48,520
given the opportunity to get that testimony.

796
01:04:49,080 --> 01:04:53,260
In other words, we can, you've heard questions concerning why it would have been, or could

797
01:04:53,260 --> 01:04:58,460
have been, in the minds of a reasonable lawyer, a reasonable strategic decision to not elicit

798
01:04:58,460 --> 01:04:59,200
that testimony.

799
01:04:59,700 --> 01:05:02,920
And there are other reasons that I can think of why that might not have been, including

800
01:05:02,920 --> 01:05:06,900
that if you listed that testimony from Mr. Kelly in light of Mr. Krause's defense,

801
01:05:08,200 --> 01:05:13,260
it would go to support Mr. Krause ordered him to do it because he might have been more

802
01:05:13,260 --> 01:05:15,540
susceptible to that sort of influence on Mr. Krause.

803
01:05:15,880 --> 01:05:19,800
That could be a good reason not to listed that testimony, not in addition to the fact that he

804
01:05:19,800 --> 01:05:22,460
also would get on the stand and have to recount his testimony.

805
01:05:23,060 --> 01:05:27,660
But, but this hope suggests that we never get to the reasonableness of this strategic

806
01:05:27,660 --> 01:05:32,500
decision relative to Mr. Kelly's testimony because the trial for prohibited him.

807
01:05:32,500 --> 01:05:35,740
He clearly had not made a strategic decision to not inquire

808
01:05:35,740 --> 01:05:36,980
as to Mr. Kelly's mental health,

809
01:05:37,140 --> 01:05:38,040
because he tried to get it in.

810
01:05:39,360 --> 01:05:42,020
He tried to get in the basic facts that he suffered

811
01:05:42,020 --> 01:05:42,940
from my home work.

812
01:05:43,720 --> 01:05:46,280
Also there was a, I would argue to your honor

813
01:05:46,280 --> 01:05:50,040
that Justice Boggs that he also, in regards to mental health,

814
01:05:50,280 --> 01:05:51,960
the fact that his father committed suicide.

815
01:05:52,760 --> 01:05:54,880
I'm not saying that that's a mental health issue,

816
01:05:55,280 --> 01:05:59,580
but that's about your ass about mental health issues.

817
01:05:59,580 --> 01:06:05,980
I believe the Council, the trial council was trying to relate that also to the mental

818
01:06:05,980 --> 01:06:06,620
health issue.

819
01:06:07,800 --> 01:06:16,780
The trial strategy would be, would you call witnesses to help support that by far or any

820
01:06:16,780 --> 01:06:24,740
other issues could affect someone to do an act without being forced or that did Thomas

821
01:06:24,740 --> 01:06:30,160
Kelly, do this act on his own without any push from a pellet.

822
01:06:31,420 --> 01:06:38,260
And so, to argue that just saying someone is bipolar, that, and to then go, well, that

823
01:06:38,260 --> 01:06:43,260
in and of itself is just a strategic error, or not a strategic error, or ineffective.

824
01:06:43,900 --> 01:06:45,260
I don't think you can make that leap.

825
01:06:46,220 --> 01:06:49,180
I'm not sure if that's sufficiently answering your questions.

826
01:06:50,400 --> 01:06:58,320
His trial strategy was to ask these, it is by opinion, yeah, my belief is that his

827
01:06:58,320 --> 01:07:03,040
trial strategy is what he said, much refraught, where are you suffering from these issues?

828
01:07:03,360 --> 01:07:05,280
Where there are different issues you are suffering with?

829
01:07:06,180 --> 01:07:11,020
Well, that in itself, including a delusional belief about some impending attack, right?

830
01:07:12,260 --> 01:07:18,120
Including some delusional belief about an impending attack by Turks against the Swedes.

831
01:07:18,120 --> 01:07:20,840
That was something that he had said before.

832
01:07:21,560 --> 01:07:25,600
So your understanding is that was where he was trying to go.

833
01:07:26,100 --> 01:07:27,360
That's a trial that didn't get there.

834
01:07:27,920 --> 01:07:28,080
Correct.

835
01:07:28,420 --> 01:07:35,900
With a person who is suffering from some delusional belief about an impending attack be perhaps

836
01:07:35,900 --> 01:07:40,180
more or less likely to commit an act of violence on their own?

837
01:07:41,020 --> 01:07:44,940
I would argue that it depends on what the attack is.

838
01:07:45,460 --> 01:07:46,720
I think you have to look at it.

839
01:07:46,720 --> 01:07:54,000
The trial, the trial court allowed trial council to ask about any biases, anything of that

840
01:07:54,000 --> 01:07:57,620
day regarding African-Americans or Mexicans, anything of that nature.

841
01:07:58,260 --> 01:08:05,240
If the depending attack was, I believe that African-Americans are coming in to the House,

842
01:08:05,440 --> 01:08:11,500
to our community, or Mexicans are coming into the House or community and doing, and I believe

843
01:08:12,380 --> 01:08:16,080
Mr. Kelly said, I'm going in to Sweden and rent women.

844
01:08:16,700 --> 01:08:21,400
If that were, I would argue to you that if that were changed, you're saying African Americans,

845
01:08:21,840 --> 01:08:28,040
Mexicans were coming into housing county, water robbing, and raping and pillaging, then

846
01:08:28,040 --> 01:08:31,360
I would argue, and I would support that argument, I guess that would be relevant.

847
01:08:31,960 --> 01:08:36,440
That would be a issue because I would show bias and a reason why he would commit the acts

848
01:08:36,440 --> 01:08:37,160
that he did.

849
01:08:37,380 --> 01:08:39,620
But we're talking about someone who's delusioned.

850
01:08:40,340 --> 01:08:47,360
So, if we're starting with the presumption that this person is delusional, might not part

851
01:08:47,360 --> 01:08:52,080
of the delusion be that somehow this thing with sweetness somehow relevant to what's going

852
01:08:52,080 --> 01:08:52,520
on here?

853
01:08:53,160 --> 01:09:00,140
It would be except that Dr. Schwarz in the after the evaluation said, when he committed

854
01:09:00,140 --> 01:09:04,400
the acts, he would not under some delusion that calls him to commit those acts.

855
01:09:05,700 --> 01:09:08,600
And so I think you have to separate the two.

856
01:09:08,960 --> 01:09:10,340
Is he delusional about something?

857
01:09:11,320 --> 01:09:12,000
I would submit to you.

858
01:09:12,080 --> 01:09:14,400
There's no disagreement regarding that.

859
01:09:15,220 --> 01:09:19,980
The fact where he, job fact, the Turks were inviting Sweden.

860
01:09:20,900 --> 01:09:22,780
I don't know, but does that relate to the fact

861
01:09:22,780 --> 01:09:27,480
that the acting committed does that delusion affect that?

862
01:09:28,040 --> 01:09:30,940
And according to the evaluation done, it is not.

863
01:09:31,740 --> 01:09:34,000
And so I think, yes, there is delusion,

864
01:09:34,000 --> 01:09:38,660
but does it impact the act that occurred when two victims were shot and killed?

865
01:09:39,560 --> 01:09:46,300
Councillor, on the ineffective assistance claim, it is my understanding that the

866
01:09:46,300 --> 01:09:51,480
appellants claim is essentially this. My trial counsel made the strategic decision

867
01:09:51,480 --> 01:09:57,960
that it would be helpful to my defense to get into Mr. Kelly's mental illness and

868
01:09:57,960 --> 01:10:03,300
mental health issues. And therefore, it was unreasonable having made that strategic

869
01:10:03,300 --> 01:10:12,020
decision for trial counsel to fail to do anything to help get that evidence in.

870
01:10:13,380 --> 01:10:19,360
I understand the state's position, on the other hand, to be that trial counsel,

871
01:10:19,620 --> 01:10:24,540
for it being a good trial lawyer, is being flexible and opportunistic and sometimes you have to make very

872
01:10:24,540 --> 01:10:25,280
nuance calls.

873
01:10:25,980 --> 01:10:31,340
And so a reasonable trial lawyer could very well say, it would be helpful to me to get in this

874
01:10:31,340 --> 01:10:36,680
mental health evidence. So long as I can get it in through my cross-examination of Mr.

875
01:10:36,840 --> 01:10:40,120
Kelly, but if I have to start getting into other things, that's going to have a lot

876
01:10:40,120 --> 01:10:45,360
of downside to it. And so if the judge will let me get away with it on cross-examination

877
01:10:45,360 --> 01:10:50,240
of Kelly, I'd love to have it. But I'm not going further than that. And that itself was

878
01:10:50,240 --> 01:10:53,860
a reasonable call. Is that essentially the state's position on the ineffective assistance?

879
01:10:54,360 --> 01:11:00,660
That is a lot of it, because in the motion for neutral trial council said, I wasn't going

880
01:11:00,660 --> 01:11:01,800
when she called Dr. Shores.

881
01:11:02,840 --> 01:11:05,460
What she had to say would have hurt my client.

882
01:11:06,280 --> 01:11:08,900
And her coming in, Dr. Shores coming in and saying,

883
01:11:09,640 --> 01:11:11,460
when I interviewed Mr. Kelly,

884
01:11:12,080 --> 01:11:14,440
and he said, he gave us the money

885
01:11:14,440 --> 01:11:15,440
to go purchase the tar.

886
01:11:15,600 --> 01:11:19,300
The reason why, because of the drug deal,

887
01:11:20,680 --> 01:11:23,180
are money owed in regards to drugs.

888
01:11:24,660 --> 01:11:28,460
All that, the proceedings, the reason why the murder occurred,

889
01:11:28,460 --> 01:11:35,120
for leading up to planning, I will also go into the disposing of the bodies, the cleanup

890
01:11:35,120 --> 01:11:42,000
who was in charge, who, for lack of a better term, gave directions to all the other individuals

891
01:11:42,000 --> 01:11:42,640
there that night.

892
01:11:42,820 --> 01:11:49,640
That being the appellate, all of that would have significantly, significantly harmed the

893
01:11:49,640 --> 01:11:50,720
appellate during trial.

894
01:11:51,100 --> 01:11:55,240
And so maybe distillate it down as the idea that there could have been a number of different

895
01:11:55,240 --> 01:11:59,420
vehicles presenting that evidence that could have been helpful to the defense and

896
01:11:59,420 --> 01:12:04,400
council made a strategic decision about which vehicle to try because some had

897
01:12:04,400 --> 01:12:09,800
more downsides than others and I'm not sure if they're just one I'm not sure

898
01:12:09,800 --> 01:12:13,760
if there are a number of vehicles to try to get that in but the vehicle is just a

899
01:12:13,760 --> 01:12:16,680
splatbo is suggesting maybe one is cross-examination the other would be calling

900
01:12:16,680 --> 01:12:22,100
an expert absolutely and I apologize just other than those absolutely that the

901
01:12:22,100 --> 01:12:27,880
the one that you could try to get into without getting these experts, experts on the witness

902
01:12:27,880 --> 01:12:35,140
dance you say, when I interviewed him, he told me AB&C, that is consistent and completely

903
01:12:35,140 --> 01:12:43,360
identical to what Kristen Beuthen said, based upon the facts of also during trial videos from

904
01:12:43,360 --> 01:12:49,520
Walmart of where Ms. Beuthen and Mr. Kelly went in and purchased the tarp. The fact that

905
01:12:49,520 --> 01:12:55,340
The money was paid and what happened the fact that when the bodies were disposed who was there

906
01:12:56,040 --> 01:13:01,840
That would have been identical not only from Dr. Shores, but Dr. Sachi who was his expert

907
01:13:02,580 --> 01:13:09,960
And so that bring again to help and because I will argue and I will suggest it court that when mr. Kelly testified

908
01:13:09,960 --> 01:13:17,540
He was equipped with some extent he would say I don't really remember I don't remember that that is what I told him

909
01:13:17,540 --> 01:13:19,060
but I don't remember to this date.

910
01:13:19,560 --> 01:13:21,580
And so he was backtracking on the witness stand.

911
01:13:22,060 --> 01:13:25,960
But then you have two experts coming in saying he told us this

912
01:13:25,960 --> 01:13:31,120
multiple times, that would definitely harm the appellate.

913
01:13:32,020 --> 01:13:36,760
In regards to the first issue, and we did not address that much.

914
01:13:37,140 --> 01:13:41,440
So far, the trial court did not have the benefit of a proffer.

915
01:13:41,880 --> 01:13:44,660
It's been cited in the brief to this court.

916
01:13:45,180 --> 01:13:48,880
other than I just want to get into this information. There was no showing about how this

917
01:13:49,700 --> 01:13:54,740
information or evidence would unravel it. So I would submit that the trial court was

918
01:13:54,740 --> 01:14:00,800
not erroneous, did not make error in that decision, and I would rest upon the briefs have been

919
01:14:00,800 --> 01:14:06,900
submitted with that. If there are no further questions, I will yield. Thank you Miss Wharton.

920
01:14:06,980 --> 01:14:08,720
I will yield my time. Thank you. Thank you.

921
01:14:25,660 --> 01:14:32,740
Just as for this is the point, what Justice Blackwell points out is that we're focused

922
01:14:32,740 --> 01:14:38,660
on the one piece of evidence, Darcy Shores' testimony, Dr. Shores' testimony, that had

923
01:14:38,660 --> 01:14:44,440
a cost benefit reasonable, competent, person attorney decision to be made.

924
01:14:44,440 --> 01:14:49,280
whether I agree with the attorney's decision or not doesn't matter.

925
01:14:49,700 --> 01:14:55,420
The question is that there was no strategic decision and in fact the attorney

926
01:14:55,420 --> 01:14:59,640
said I obviously didn't have a strategic decision.

927
01:15:00,000 --> 01:15:29,900
And to try to keep the other important stuff out, because I didn't, I tried and I couldn't get it in, and I hadn't prepared well enough to bring Dr. Fogbamiya, who would have testified that Thomas Kelly was being medicated and treated from the very beginning after his father's suicide up until the time of this killing. And Robert Schaeffer, Dr. Schaeffer, to testify about the physical evidence, the sub-coral brain lesion in the right frontal lobe that leads

928
01:15:29,900 --> 01:15:32,600
leads to impulsive and aggressive behavior.

929
01:15:33,880 --> 01:15:36,840
This issue of delusional compulsion

930
01:15:36,980 --> 01:15:40,880
is directly related to Thomas Kelly's understanding

931
01:15:40,880 --> 01:15:45,900
that Ruben Miranda was there in an threatening cold crouch.

932
01:15:46,720 --> 01:15:49,980
Ruben Miranda, who Thomas Kelly describes as a Mexican,

933
01:15:51,460 --> 01:15:55,780
in his mind, based on videos, these crazy videos he'd

934
01:15:55,780 --> 01:16:03,140
seen and told everyone about Mexican's raping women and what he testified to and all the

935
01:16:03,140 --> 01:16:06,480
witnesses that were there at the home if I may finish this testified to.

936
01:16:06,500 --> 01:16:07,240
Thank you, Ms. Hook.

937
01:16:07,520 --> 01:16:07,920
Thank you.

938
01:16:09,200 --> 01:16:09,800
Thank you.

939
01:16:09,960 --> 01:16:10,380
Thank you all.

940
01:16:10,480 --> 01:16:11,340
This court is adjourned.