[This transcript was generated automatically from audio using AI and hasn't been reviewed by a person -- it can contain mistakes, including plausible-sounding sentences that were never actually said. Treat it as a starting point, not a verbatim record.]

[0:00] 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
[0:30] for the precise question as articulated by this court
[0:34] and its order granting our petition for Sir Shiari,
[0:37] the following.
[0:38] Did the Court of Appeals air in its view
[0:42] of the trial court's decision
[0:44] to strike any scandalous matter
[0:47] from orthosavanas complaint?
[0:51] We respectfully submit that the answer
[0:53] that question is yes.
[0:55] And we further respectfully submit that a review
[0:58] of the Court of Appeals order, coupled with even a cursory review of the plaintiffs' complaint
[1:04] in this action, makes it imperatively clear that the trial courts of this state and
[1:12] the lawyers who are privileged to appear before them need some guidance from this court, which
[1:19] has the dual responsibility of governing the rules of conduct of our profession and of
[1:27] ensuring equal, efficient justice is provided throughout the state.
[1:34] We believe that it is incumbent on the court in this case to let practitioners and trial
[1:40] judges alone alike understand the acceptable pleading parameters in this court so that
[1:49] that we might protect the decorum and the dignity that is long been associated with this
[1:57] profession.
[1:59] The specific statute called into question for the courts review today is the official
[2:04] code of Georgia annotated section 9-11-12F.
[2:10] That statute provides as follows.
[2:13] A court may strike from any pleading, quote, any insufficient defense, or any redundant,
[2:25] immaterial, impertinent, or scandalous matter."
[2:33] We must in construing a statute as this court is held, perhaps most notably, in the opinion
[2:40] then authored by Justice Blackwell in the Deal Vs. Coleman decision in which Justice
[2:46] Peterson participated as a solicitor general, we must assume that when the legislature
[2:53] enacts a statute, it meant what it said and it said what it means.
[3:00] Words have meanings in the Deal Vs. Coleman case, the opinion dealt with in some detail, the
[3:09] serial comma, the disjunctive or, we have that here, and while we don't have to parse
[3:16] participial phrases like was done so thoroughly in that case, what we do know is that scandalous
[3:26] follows the serial comma, it follows the disjunctive or, that means we respectfully submit
[3:35] that immaterial, irrelevant, and redundant means something differently than the word scandalous.
[3:45] Mr. Chair, if you read it, if you read it that way, immaterial, redundant, and
[3:53] impertinent would also mean something different than each other, but the federal courts and
[4:01] In this court, to be extent, we followed it because this rule is identical to the corresponding
[4:07] federal rules civil procedure, right?
[4:09] Yes, sir.
[4:10] And for those three words, it's fairly uniformly agreed that they don't really mean anything
[4:16] different.
[4:18] In material redone that, in pertinent, those are all treated as basically the same thing.
[4:24] I'll respond the couple of parts, presenting Justice Namus.
[4:28] I think the argument can be made certainly that based upon review of the landscape of federal
[4:35] decisions that have interpreted rule 12F, they do stand for this general proposition
[4:41] that motions to strike under 12F are generally disfavored.
[4:47] However, if we drill down further, there's a distinction between scandalous, and we find
[4:52] to that actually in the McGiverin decision from the Court of Appeals, 1974, the McGiverin
[4:58] decision in northwestern versus McGiverin.
[5:01] Court of Appeals said, immaterial, I'm sorry, immaterial, impertinent, and redundant,
[5:10] they're all closely related, but those three are more closely related than scandalous.
[5:14] Even in 1974 we recognized that scandalous is in a different category.
[5:19] 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.
[5:38] Redundant, superfluous, repetitive, but that aside,
[5:45] whether something is immaterial or is impertinent,
[5:47] I think we're dancing on the head of a pen in trying to distinguish those as being
[5:52] anything other than irrelevant.
[5:54] Then we get into this category behind the serial comma and the disjunctive
[5:59] or scandalous, and the scandalous mean something other than what the Court of Appeals
[6:05] said, which is synonymous for impossibly relevant.
[6:11] We believe scandalous means something other than impossibly relevant.
[6:17] The legislature met what it said, and it said what it meant when it ascribed a separate
[6:22] term as part of the 9-11-12-F analysis.
[6:26] And in support of that, there are a number of definitions found in the case law that we
[6:37] think are essentially synonymous with one another. Here are a few examples. Reflect
[6:45] cruelly on the defendant's moral character. Offensive to propriety or morality. Disgraceful,
[6:52] shameful or degrading acts of conduct and as defined by Moore's federal practice. Any
[7:01] allegation that unnecessarily reflects on the moral character of an individual
[7:06] or, disjunctive or, states anything in repulsive language that detracts from the dignity
[7:14] of the Court.
[7:16] Would nearly every divorce case have to be strickened, every pleading in a divorce case,
[7:21] or a child molestation, prosecution?
[7:24] Very good questions.
[7:26] And the answer is this.
[7:28] There are unquestionably cases.
[7:31] given the nature of the cause of action, given the elements that must be proven
[7:36] by the plaintiffs to succeed, there are going to necessarily be allegations
[7:40] that might indeed fall within the definition of scandalous.
[7:45] They could offend the moral sensibilities of an average reader, but they're necessary.
[7:49] They have to be included in order to advance the plaintiffs' cause.
[7:53] I would make an analogy to what the Court does under Rule 403.
[7:56] The trial court will sometimes exclude evidence that is undeniably relevant, but the prejudicial
[8:05] impact of that evidence outweighs the probative value so the jury doesn't get to hear it.
[8:10] But the statute doesn't talk about prejudice.
[8:13] It does talk in some sense about relevance.
[8:16] So are you suggesting that the rule then becomes a prejudice inquiry instead of a relevance inquiry?
[8:22] Yes.
[8:23] And the reason for that is this.
[8:25] We talk about the fact is both parties acknowledge that this court can look to federal courts for guidance.
[8:33] This court has never addressed this question.
[8:36] Most federal courts have not addressed this question.
[8:40] When the cases that are cited and relied upon by the Court of Appeals and even in the party's briefs,
[8:45] talk about the standard.
[8:46] It's generally in a case involving striking of an insufficient affirmative defense, which
[8:53] is recognized in a separate category by itself since affirmative defenses are due liberal
[8:58] construction, or in the case of McGibburn, it dealt with striking something that was deemed
[9:04] to be impertinent, not with the question of scandal.
[9:08] Here's a case we think is very insightful and instructed to the court.
[9:12] It was decided three months ago today, very recent decision, and it was decided by the Western
[9:20] District of Virginia.
[9:22] That case, which is cited in our briefs,
[9:28] is Williams vs. Lipscomb.
[9:32] Here's what Williams vs. Lipscomb did.
[9:35] This was a case in which the plaintiffs, an African-American family, went to lunch at Golden
[9:43] in Corral for an all-you-can-eat buffet.
[9:47] The defendant, one of the defendants, was their server.
[9:50] The allegation is that she was spending an inordinate amount
[9:53] of time sweeping around their table, spying on them.
[9:57] The allegation is that she came up to them
[9:59] and said, this is an all-you-can-eat buffet,
[10:01] but you just put some food in your purse.
[10:03] There's an extra charge for that.
[10:05] The allegation that that was a race-based conduct
[10:09] and the conduct that followed with the police
[10:11] getting involved gave rise to a 1981 claim, a Civil Rights Violation
[10:16] claim. In that case, there were allegations in the complaint that the defendant
[10:22] Waitress was a known racist. There were allegations that she was known for
[10:28] using the N-word, and they used the N-word didn't spell it out. Everybody knows
[10:35] what the inward means. The trial court, Federal District Court, three months ago, struck
[10:42] those allegations from the complaint even though it was a civil rights case. Now, what do we have here?
[10:48] Well, was it a civil rights case based on racial discrimination?
[10:52] Yes.
[10:53] So you really think that the use by a defendant of racial terminology in a civil rights case
[10:59] case is both, well, first is it irrelevant, clearly not, right?
[11:07] And how is that, I mean, under the Moore's definition, how is that scandalous, if you
[11:14] are repeating the terms that the jury will hear at trial?
[11:17] Are you saying the court would properly exclude that evidence at trial?
[11:23] That the defendant...
[11:25] I'll just say, if that's the case you rely on is right, I think you are on very slim
[11:32] Let me see if I can find some thicker ice.
[11:35] And I would attempt to get there here.
[11:38] Council, was that a, did that case involve a motion to strike a complaint, portions of
[11:43] a complaint?
[11:44] Yes.
[11:45] And would you agree that when you decide whether something is necessary to a complaint, you
[11:49] have to look at it in terms of what it's supposed to be in a complaint and what is not, that
[11:54] And a complaint is a short and plain statement of the claim and you are not supposed to plead
[11:59] all your evidence that may prove relevant at trial.
[12:03] Would agree, Justice Blackwell, absolutely.
[12:05] And the important distinction here of Justice Namus, President Justice Namus, these are not
[12:10] allegations in the complaint that the defendant's server called the plaintiffs the end word.
[12:19] The allegation is that she had a no reputation in the community as a racist, which are two
[12:26] very different things and which bring this back to the case before you're on.
[12:30] But then that sounds to me like what you're actually arguing is that that was relevant
[12:34] or not relevant, not whether it was prejudicial.
[12:37] Well, in that instance, we're back to the standard of review.
[12:40] the trial court made the decision in that instance that however it reached the
[12:48] balancing that that an allegation of a reputation of being racist wasn't
[12:57] critical even to a 1981 claim though in that case the court made a
[13:01] substantive finding that the plaintiff had pled to plead the proper aspects that
[13:06] But again, the UN case to follow up on Justice Warren's question, it sounds like in that
[13:11] case the court decided that this is just not relevant to your claim.
[13:18] If it were relevant to the claim, if it were the waitress calling the plaintiffs at the
[13:23] time of the incident, the N word, then I don't know how you would exclude it under the scandalous
[13:29] piece.
[13:30] It would clearly be relevant in that situation, right?
[13:33] And you would say that that can be excluded under the scandalous piece.
[13:39] The Court found expressly in that case that it was both scandalous and in material,
[13:45] under both problems.
[13:46] Right.
[13:46] Although as the cases on the treatises say, if it is irrelevant, then even if it is kind of
[13:54] slightly offensive, it is scandalous, too, but the Moore's definition that you ask us
[14:00] to adopt says it has to be unnecessarily scandalous, or that it would,
[14:12] or states anything
[14:14] in repulsive language that detracts from the dignity of the court.
[14:16] But on the repulsive language side, the cases seem to say you can't just gratuitously use
[14:22] lots of curse words in your pleading if they're not really necessary, but in a case where
[14:29] It's relevant to your charges, and it's not outrageously unnecessary in its terminology.
[14:37] So why don't you apply your earnings and time down?
[14:41] The standard in this case, the trial court, and in order you drafted, I believe, or
[14:47] your counsel, prior counsel drafted, just said, it's all scandalous, everything's out.
[14:51] With no explanation, do you think that's appropriated as a trial court need to explain
[14:56] itself, if it's striking things, I think that...
[15:00] 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?
[15:29] it was relevant and not scandalous.
[15:32] Let me give one example of that in the interest of time.
[15:36] This is something the trial court struck,
[15:38] but the Court of Appeals put back in.
[15:40] In paragraph 18, the plaintiff alleged on about July 2015,
[15:48] Dr. Ascoly noticed the phrase in lover,
[15:52] written into the dust on his vehicle's windshield.
[15:54] Now, I just said in lover,
[15:56] or the actual complaint here spells the word out.
[15:59] Isn't the argument that there was something,
[16:03] well, one of the clients is constructive eviction,
[16:08] that they were basically run out
[16:09] of the building in fear and by pressure.
[16:14] Finding the N word written in your,
[16:16] on your vehicle might be very offensive,
[16:20] but how would that be connected to your clients,
[16:23] except for saying that your clients
[16:25] had done similar conduct before.
[16:28] I mean, you couldn't be run out of your building based on a random threat, but you could
[16:33] be run out of your building and the claim is they were run out of their building here
[16:37] because of a threat that was connected up so they knew it was a threat from Dr. Tavis.
[16:42] The legitimate point in question, let's drill down on a little further.
[16:45] What's the specific allegation in the complaint?
[16:48] This isn't the specific allegation in the complaint.
[16:51] Upon the discovery of this word, allegedly written on the dust of his windshield.
[16:56] Quote, so as to not a work or concern his employees, Dr. Ascoe merely wiped away the praise.
[17:04] Although troubling to Dr. Ascoe, Dr. Ascoe did not realize Dr. Chappius was behind the message
[17:11] at that time having long since concluded it landed with a gaseous.
[17:15] Dr. Chapius, however, is a known racist that has previously made highly offensive remarks
[17:21] in the past and engaged in a pattern of systematically firing all African-Americans from his medical
[17:27] operations.
[17:28] That's the allegation the Court of Appeals put back in.
[17:31] At the time, the plaintiff, actually not even the plaintiff, the principal of the LLC, saw
[17:37] this racial epithet, the most vile and hated epithet in the history of our nation, allegedly
[17:44] written on his windshield, it didn't even occur to him that Dr. Chapness had anything to do with it.
[17:49] But it's tied to the allegation in the complaint under recent harassment and hostilities.
[17:55] In paragraph 14, it mentions that defendants have been doing whatever they can to disrupt
[18:01] ortho-sports of anist business, and that cited as an example of what defendants have been
[18:06] doing to disrupt business.
[18:08] It is, but if one looks at what the factual predicate is, it is in the allegation.
[18:12] 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.
[18:22] 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?
[18:31] 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.
[18:40] We're talking about when this complaint is viewed in the end whole, everything that
[18:46] was stricken by this complaint.
[18:47] One could come to the conclusion, the rational conclusion, that when plaintiffs drafted
[18:53] this complaint, they went out of their way to make every skirless and scandalous allegation
[18:59] against Dr. Chapius that they could for the purpose of inciting and inflaming the reader.
[19:04] That is not the function of proper pleading practice in this state.
[19:08] We think the proper practice, yes, relevancy, materiality, should be part of the analysis,
[19:15] but if there is tenuous relevance and significant prejudice, we think the trial court is within
[19:27] its discretion, the Court of Appeals abused its discretion and ruling otherwise.
[19:33] Thank you.
[19:33] I think it was a trick.
[19:54] My name is Yasha Haderi, and I represent
[19:56] at Appellis, or for the support of Savannah.
[20:01] Before I jump into a response to some of these statements
[20:05] that were directly made, I think it's important
[20:07] to note the context of rule 12F.
[20:11] The appellants would have us believe
[20:13] that it sort of came to exist in the vacuum.
[20:16] Neglecting the fact that the Civil Practice Act
[20:20] came to be after a substantial overhaul
[20:22] all the Georgia's code and modeled the federal rules.
[20:27] By doing such, the Court of Appeals,
[20:30] interpreting rule 12F,
[20:32] performed the very same analysis
[20:34] that this court performed in analyzing
[20:37] paragraph B of the same statute regarding motion to dismiss.
[20:40] Both the Court of Appeals and this court
[20:43] looked to the preeminent Federal Treatise,
[20:46] Professor Morris Treatise, and determined
[20:48] how should the statute be interpreted.
[20:50] Since
[20:53] that time, for half a century, the Court of Appeals has consistently applied
[20:58] the same interpretation.
[21:02] Much as this Court has similarly applied the same interpretation regarding motions
[21:07] dismiss in paragraph B.
[21:09] The problem is, the Court of Appeals, both in the cases, the earlier Court of Appeals
[21:15] cases it cited and in what it said it was doing, citing cases that were only about
[21:20] the interpretation of the first three words of Twelves, not the word scandalous.
[21:27] And ignore the fact that Moore's definition itself, as well as other treatises and
[21:33] federal cases, say, scandalous is the one thing in Twelves that goes beyond mere relevance.
[21:40] Is that right or does the Court of Appeals separately?
[21:44] Well, let me ask first, do you believe scandalous means has some active meaning
[21:50] other than the other words in 12b?
[21:52] I would, Your Honor.
[21:54] Okay.
[21:54] And did the Court of Appeals appreciate that in its decision?
[21:58] I believe the Court of Appeals didn't in fact appreciate that.
[22:01] And it seems to me to wear in the Court of Appeals opinion, you think, they reflected
[22:06] that there is a separate meaning for the word scandalous.
[22:10] They cited any of the case law, federal case law, the treatises that define
[22:17] scandalous. I don't think they actually go into the definition of scandalous for what they do
[22:25] is they go into sort of the notion of it's just matter-relevant. And the reason why that's
[22:31] important, for your honor, is because let's assume that we're ignoring the body of federal case law.
[22:37] Let's assume we're ignoring the treatises. Let's assume we're ignoring the fact that other
[22:41] sister jurisdictions have applied the same tests and reached the same conclusion. Let's even ignore
[22:46] Black's Law Dictionary, which defines scandalous matter as a term of art as being
[22:51] both grossly disgraceful and irrelevant.
[22:54] That's what Black's Law Dictionary say.
[22:56] Let's just assume that the statute came up in a vacuum where it simply states that the
[23:01] trial court may on its own initiative or upon motion strike any matter that it deemed
[23:06] scandalous end of story.
[23:08] In that situation, some of the judges just raised the issue about what about a child
[23:14] an organization case, or a divorce case, what if the trial court came back and said,
[23:17] you know what?
[23:18] This sounds distasteful.
[23:19] I'm just going to strike all of this.
[23:21] That sounds odd.
[23:23] I think intuitively you'd say that sounds to be some sort of an abuse of discretion.
[23:28] And the question is, what sort of test would you arrive at, or how would you go back to
[23:31] the statute to not result in absurdity?
[23:35] That's where you come back to, if the matter is relevant, it probably should say in there.
[23:39] In all of the cases, why is relevant the right standard?
[23:45] I mean, it seems logical that the fact that a defendant has done something really bad
[23:52] should not be a reason why the claim against that defendant fails.
[23:58] But what if there's evidence that's relevant but not necessary to survive a 12-B-6 motion?
[24:09] Why wouldn't it be appropriate to strike that material?
[24:13] You can't say it affects the bottom line of your case.
[24:17] Not in that context, but according to the statute, the trial court has discretion to strike any portion of any pleading.
[24:24] What if we get into a motion for some re-judgment?
[24:27] 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.
[24:34] Does that give the trial court discretion to simply strike those portions out of your motion
[24:39] for summary judgment where you assert theories of recovery or causes of action?
[24:43] That's not a pleading as it is.
[24:45] It depends on what your definition of pleading is, Your Honor.
[24:49] And that's?
[24:50] Summary judgment motions are not pleading under the Civil Practice Act or the Federal Rules of Civil Procedure.
[24:56] Pleading's are limited to the complaint, the answer across, and so on.
[25:00] So, to that end, with Justice Names' question and Justice Pearson's too, let's say you have a complaint.
[25:06] It starts out it states the names, it gives you basic background information, you know, just completely basic.
[25:12] But every other allegation is a reasonable person would think it's scandalous.
[25:16] Every other paragraph has something that could be offensive to the court or could be offensive to a reasonable person.
[25:21] 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?
[25:27] I would go with what the Court of Appeals has been doing for the last few years,
[25:31] which is what Professor Moore's Treatise also says, which is that if it is,
[25:36] if it could have any bearing or possible bearing upon the subject matter of litigation,
[25:41] it should not be stricted.
[25:42] That's right.
[25:42] Council, let me, let's look at the complaint in this case, and let's talk about a couple of
[25:48] paragraphs of the complaint that Mr. Trigg talked about.
[25:51] Paragraph 18, the allegation that there was a racial epithet etched into the dust on the
[26:02] gun of Ed Shields.
[26:04] If that was left there at the direction of Dr. Chapius, that obviously forms a part
[26:16] part of your claim, the forms a part of the basis for the claims, the underlying
[26:22] claims, and therefore that might well be necessary to state a claim.
[26:27] But the fact that Dr. Chapius had a pattern of, for instance, firing African-American
[26:36] employees, that is evidence of a racist intent that might support the allegation
[26:44] that he was behind, believing of the message and dust, but the fact that he may have dismissed
[26:51] African-American employees from his practice is not itself a basis for the claims in this
[26:59] case.
[26:59] Is that correct?
[27:00] That is correct, Your Honor.
[27:01] So, that would be pleading evidence, not pleading facts essential to state of claim.
[27:06] Well, perhaps I could have played it a little more eloquently, but if we would have taken
[27:09] in a step further, there would be evidence that these same phrases are what caused
[27:14] and or part of what caused Dr. Chapius and his former business partner to part ways.
[27:21] And what's critical here is that although these things might be offensive or they might look bad,
[27:27] these are the things that my client and his staff had to go through.
[27:30] So what elements of your claim was the fact of his firings, the allegation of his firings necessary to?
[27:38] What element of the claim was that necessary to?
[27:41] I think that goes to who was behind this message.
[27:45] Was the fact, the alleged fact of his treatment of his employee,
[27:53] a necessary element of his claim filed here?
[27:58] Perhaps not, but it's something that could be added
[28:03] because these were not just one person who
[28:07] It was impacted by this, but all the old staff, the left of practice, is being harassed
[28:12] again just as they were being harassed previously.
[28:14] But there are.
[28:15] Which may well be very relevant evidence at summary judgment or at trial, but it is not
[28:21] an element of the causes of action that is essential to survive 12-B6.
[28:25] So how can you say it is scandalous, or how can you say it is necessary within the meaning
[28:32] of, for instance, Moore's definition of scandalous under Rule 12 L.
[28:38] Well, I think that's where you get into it.
[28:39] Could it be?
[28:41] At this point, according to Moore's, it's not just, is it directly necessary?
[28:46] Is it directly relevant, but could it be relevant?
[28:48] I mean, could it have a bearing upon the subject matter?
[28:50] The relevant and necessary are not the same thing, right?
[28:53] Correct.
[28:54] Whether it could be relevant, but probably, but why is it necessary?
[29:02] I mean, you've already said that it probably is.
[29:04] I was saying that as far as why is it necessary, Your Honor?
[29:08] I think that there's really two answers to that.
[29:11] Number one is that it's necessary because it demonstrates the party that's engaging
[29:16] in this conduct is the same party that has done this conduct in the past.
[29:21] This is all-.
[29:22] Well, but in a complaint, all you have to say is this guy did this.
[29:26] You don't have to plead evidence that convinces a jury that he did it.
[29:30] I think you can just assert as a matter of fact that he did it.
[29:35] But in terms of the complaint, I'm not sure if the standard should be a litigant,
[29:40] should assert a complaint on the bare bones and sort of avoid things that may be necessary,
[29:46] may be relevant, may sort of color the activities.
[29:49] I think that is-
[29:49] What else does short and plain statement mean?
[29:53] I think a short and plain statement can be short and plain, but it should depict effects,
[29:57] Honestly, you need to give a back here.
[30:00] 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.
[30:29] to use previously sanctioned for performing a surgery while using cocaine.
[30:35] What does that have to do with any of the claims you raised here?
[30:42] Well, of course.
[30:44] Well, it obviously throws great negative weight on Dr. Chapus' character.
[30:50] I have two answers for that, Your Honor.
[30:52] But first of all, the Court of Appeals came back and struck that.
[30:56] Right.
[30:56] After you put it in your complaint and the trial court struck it and the court of
[31:00] Pills left the strut. Apparently, you thought it was okay originally, so why did you
[31:05] think it was okay originally to include that? Where are you saying you actually, the
[31:09] court of Pills was correct in the strut? I think the court of Pills properly exercised
[31:13] this discretion, but as far as why we stuck it in the complaint? The court of Pills
[31:16] doesn't have any discretion, does the trial court exercise its discretion properly in the strut?
[31:21] I'm not sure the trial court actually exercised any discretion to be quite honest. I
[31:25] I think they entered an order without having properly reviewed the law or the brief because
[31:30] maybe the better way to ask it is are you today saying that that paragraph should still
[31:34] be included or do you think or are you saying that it's okay that it was triggered?
[31:37] I believe that would be okay to be stricken based on the court of appeals, well reasoned
[31:42] opinion.
[31:43] As far as why we had it in there, I think that it's very important for context to recognize
[31:49] that most reasonable people cannot fathom a situation where an ex-business partner purchases
[31:56] your medical building for whose context for the reader or for the file courts for anyone
[32:02] who basically a lot of the trial court need context when determining whether you've
[32:07] stated a claim.
[32:09] I think the trial court may need context in terms of if the other side was a file of motion
[32:14] on the pleadings for instance.
[32:16] How would paragraph 31, how would that context affect whether or not a motion on the
[32:22] pleadings would be successful?
[32:25] I'm not sure what effect how it would be successful.
[32:28] So why would the context of that sort be relevant?
[32:30] Why would it be useful?
[32:32] What purpose would it serve in a complaint?
[32:36] Whose context are you trying to provide?
[32:40] Well, I think if the example of someone moving in the next door,
[32:43] 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.
[33:06] Right, this is, we need to demonstrate that my client really saw this as being unreasonable
[33:12] and any reason you need to demonstrate to whom.
[33:14] We would need to demonstrate to the court.
[33:16] Well, but even on a motion to dismiss, for example, you would have to take those allegations
[33:20] as true, so you wouldn't have to explain them further, right?
[33:23] We wouldn't have to, your honors, but I believe that we couldn't explain them further.
[33:26] I don't believe there's any prohibition on explaining it further to make this unequivocal.
[33:31] 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.
[33:51] Council, I'm still concerned about guidance for our trial courts and exactly where they're
[33:55] to draw the line.
[33:57] So we're here on an abusive discretion standard, correct?
[33:59] Yes, Your Honor.
[34:00] Which with respect to your allegations contained in paragraph 13 through 37 of the complaint, harassment
[34:07] and hostilities, I think is the title of that provision of your complaint.
[34:11] Would you agree or disagree that taking out paragraph 13 that Mr. Trigg referred to and
[34:19] leaving out, of course, 31, which the trial court struck, those, that specific element
[34:26] of your claim still survives a motion to dismiss, prepare the snake line, correct?
[34:31] I would hope so, Your Honor.
[34:33] Okay.
[34:34] So back to questions that have been asked repeatedly, it's an abusive discretion standard
[34:38] and I'm not sure I got your answer on relative to paragraph 31, do you believe the trial
[34:44] of use their discretion in striking paragraph 31.
[34:49] I don't believe it didn't in that situation on our own.
[34:52] And if that's the case, then they would not have exercised
[34:56] on abuse of discretion to strike paragraph 13 either.
[34:59] I believe striking paragraph 13 where we discussed the fact that
[35:02] I'm sorry, paragraph 18.
[35:04] Paragraph 18 is one of the street rules we were referring to.
[35:07] And particularly night, which is an explanation for paragraph 18.
[35:14] My concern is that under the circumstances of this case with abusive discretion being
[35:19] the standard that we're presented with, what are we going to tell right and an opinion
[35:24] that is going to give clear guidance to the trial bench about where the line should be
[35:27] drawn relative to these motions?
[35:29] I think the line should be drawn in your honor as far as if matters should be stricken only
[35:36] if you have no possible bearing upon the subject matter of the litigation.
[35:39] I mean, that's the line that Federal Court's treatises have regularly drawn for the irrelevant
[35:46] and pertinent redundant, for scandalous.
[35:53] So if it is relevant to the case that somebody is accused of being a racist, it's a racial
[36:00] race because, or that they use bad language, can you, if you have them on take cursing up and
[36:09] down and calling the courts, horrible names, can you put all of that in your complaint
[36:15] on the theory that who cares, it's somehow not entirely relevant?
[36:22] I think in that situation, you should be able to put that in your complaint if that's what
[36:27] you're engaging in, and that's their conduct.
[36:29] But let's say I sell Justice Blackwell a ticket to the Georgia Auburn that is in fact a counterfeit.
[36:39] And he sues me for fraud and he puts in the complaint just to show my reputation for
[36:46] being a bad actor that I'm a child and a lesting serial killer.
[36:49] Is that something you can put in the complaint?
[36:53] I don't believe so.
[36:53] Why not?
[36:54] because I don't believe it has any possible bearing on a subject matter of
[36:57] litigation. Why? Isn't it context? In that situation I don't believe so but if
[37:04] you had previously sold him counterfeits before and he had been vain bruised
[37:09] before I think that could be useful and that could possibly have bearing upon
[37:13] a subject matter of litigation. So what's the why is would the cocaine abuse and
[37:19] any alcohol abuse, be context here that's relevant,
[37:22] any more than the allegation about
[37:26] child molestation and serenity.
[37:28] I think that's taking things up a notch
[37:31] in our sit circumstance.
[37:33] Most reasonable people, they don't engage in situations
[37:36] where you hire people posing as police officers
[37:39] to come to your house at 5 a.m.
[37:41] and basically try to intimidate you to leave.
[37:44] That's something that's absolutely egregious.
[37:46] 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?
[37:58] 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.
[38:12] 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.
[38:30] Ultimately, your honors, I believe that the Court of Appeals, so what is the test for scandalous that you're saying we should apply?
[38:41] I'm still not entirely clear on that.
[38:44] What does it mean?
[38:44] I think scandal will be the Black Slot Victionary and I think that their definition is a proper
[38:52] definition which is that the matter is both grossly distasteful or defamatory and irrelevant
[39:00] to the action.
[39:01] But the first three words of the statute already kick out anything that's irrelevant.
[39:05] So what does scandal is add?
[39:08] If you already kicked out everything that's irrelevant, there's nothing left for scandalous
[39:12] to do if it only applies to a subset of irrelevant facts.
[39:16] Well, I think that Bull 12-Beth actually has some useful significance, and for instance,
[39:20] in the former case, when the deliverance referred to the other deliverance is Judas.
[39:25] It had absolutely nothing to do with the case.
[39:26] It simply besmirched one of the characters, but in that situation, the court said, you
[39:31] know what?
[39:31] This is scandalous.
[39:33] It's grossly distasteful or abandoned.
[39:34] But it would also be immaterial.
[39:35] So it would be excluded under one of the other three words.
[39:38] What isn't excluded by the first three words of the statute that is excluded?
[39:41] as scandalous. And if your answer is nothing, then what you're saying is the word scandalous
[39:46] is just surplusage. Well, your honor in the situation where something is, if I may continue.
[39:54] In the situation where, let's just say that in that preem, the phrase was referred to as a single
[40:01] time rather than multiple times. And perhaps in that situation it actually had some sort of other
[40:08] back that was tied into the case and matter didn't have to necessarily be simply
[40:15] redundant to be stricken but in this situation it would also be one in which
[40:20] the matter is both growth leads to stays forward and the advantageories as well
[40:24] as being redundant. Thank you Mr. Chair there. Thank you Mr. Chair.
[40:41] May I please
[40:41] the Court? We believe the appropriate standard is akin to rule four and three. We need
[40:47] future guidance, practitioners of future guidance,
[40:50] trial for future guidance, these lawyers who were admitted
[40:53] to practice before the bar into being
[40:55] lead your guidance to ensure that the forum
[40:58] and dignity associated with our judicial system
[41:01] is protected and preserved.
[41:03] Thank you very much.
[41:06] May it begin?
[41:08] May it please record?
[41:11] On August 18, 2013, while at a pellant,
[41:16] Coleman Crouch's apartment. Thomas Kelly took hit block 21 and opened fire on
[41:27] Ruben Miranda and Shaland McConnell who were there to see Cole Crouch to settle
[41:35] the debt and in opening fire firing at least eight shots Thomas Kelly murdered both
[41:44] of those men. Soon enough, the next morning, Cole Crouch was found and interviewed, initially
[41:53] evasive, and then admitted what Thomas Kelly had done while they were at the apartment.
[42:01] Expressed his shock, his panic, and admitted having worked together to move the bodies and
[42:08] and hide the evidence, and in fact took law enforcement
[42:13] to the location on Thomas Kelly's family's property
[42:17] where those bodies were buried.
[42:20] And Coleman Crouch told law enforcement,
[42:25] I didn't want this to happen.
[42:28] This was Thomas Kelly's doing.
[42:31] And soon enough, Thomas Kelly and his girlfriend,
[42:34] Christen Bethune, who was also at the apartment,
[42:39] were found over at Gwyneth Community College
[42:41] and interviewed, where they had been together
[42:45] from the evening of this event on Sunday to the next day.
[42:50] Christen Bethune, initially evasive,
[42:54] that admitted having been there
[42:56] when her boyfriend Thomas Kelly opened fire,
[42:59] but relayed that this was Cold Crouch's idea and Thomas Kelly initially said
[43:08] the same thing, but in a lengthy gut wrenching, gut wrenching videotaped interview
[43:15] where law enforcement implored him, why? Why did you do this?
[43:22] Thomas Kelly went off and explained, through his demeanor in his words, a sad and horrific and sick mental illness.
[43:36] He began by describing in fourth grade, witnessing his father's repeated suicide attempts.
[43:43] And when he was 17 years old, the actual suicide of his father that changed his life forever,
[43:51] that was done with the exact same gloctomy views to murder these men.
[43:59] He described a bizarre racial animus that he had with African Americans, with Hispanic
[44:06] people, with some crazy belief that the Turks were going to be invading Sweden,
[44:13] to be his origin, and that he had this calling,
[44:17] this adhering, this need, this calling
[44:20] to take care of this history through this killing.
[44:28] And at trial, Thomas Kelly testified.
[44:31] No one told him to do this.
[44:33] He did it because he felt he had to.
[44:37] So there, your arms, was the defense.
[44:41] Why Thomas Hill and Kelly killed these two men?
[44:46] 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.
[45:00] Council, low damage of a brain lesion. So, of course, trial counsel began the trial in their
[45:09] opening explaining, after Thomas Kelly had pled guilty, after Christopher Thune had pled guilty,
[45:16] after Justice Evans, another friend of Cole and Thomas Kelly's that were there at the
[45:22] department and Amy, his girlfriend, after they'd all fled and been called to testify.
[45:29] The defendant's opening was clear.
[45:34] This was Thomas Kelly's irrational, impulsive, anger-filled, likely delusional compulsion to
[45:45] kill. And when the defense counsel began to cross examine Thomas Kelly to elicit that
[45:54] sad and heart-wrenching history,
[45:59] the court foreclosed that cross-famination, the court
[46:03] said, you're not getting into that. And the defense counsel continued to try to argue to
[46:11] the trial court, why the term Swedish animus could somehow be relevant, and fair enough
[46:18] the trial court could not discern a relevance, could not discover, could not figure out
[46:25] what this defense council was trying to do, because defense council had failed to develop
[46:32] the record with a proper, emotional limit, providing the trial court with that information sufficient
[46:39] for the judge to make a rational sound decision on the relevance of this evidence that supported the
[46:48] defendants, the appellants, sold the fence at trial. And it was an incredible amount of evidence
[46:57] that was prohibited from that trial. A family history of Thomas Kelly's father, his paternal grandfather,
[47:05] and fathered as paternal grandmother, so psychiatrically ill
[47:10] that they had all undergone electroconvulsive therapy.
[47:15] Auditorial hallucinations of his father
[47:17] so rampant that it led to his suicide.
[47:24] And Thomas Kelly's treatment, or mental health
[47:27] disorders, only four weeks after this 17-year-old's father
[47:32] had killed himself, and treatment
[47:35] and diagnosed each by those mental health practitioners
[47:39] that he was bipolar.
[47:41] That he had such significant mental illness
[47:44] that he was treated in a difficult condition.
[47:47] Council, you assert this claim in a couple of different ways.
[47:52] You assert it as an abusive discretion claim,
[47:57] directly, you know, direct air by the trial court.
[48:00] And then you also assert it as ineffective assistance.
[48:03] Your first ineffective assistance claim is failing to provide sufficient evidence that the
[48:09] troughport could have understood that the testimony about Sweden was relevant.
[48:14] Given that it was, I don't know from this record how the troughport could have figured
[48:21] out how this Sweden-related testimony was relevant, how could that be an abuse of discretion
[48:26] by the troughport?
[48:27] Well, we have flooded in both ways.
[48:30] We agree.
[48:31] What we're complaining about, of course,
[48:34] is the order on the motion for a new trial,
[48:37] where now a different trial judge,
[48:40] because the trial judge who had presided
[48:42] at the trial is cases and retired.
[48:45] So a new trial judge was presiding
[48:48] over the motion for new trial hearing.
[48:50] And what this court found was to support the decision
[48:54] by the initial trial court.
[48:55] didn't argue that didn't have that trial court,
[48:58] didn't have enough information.
[49:00] In fact, an emotional for new trial said that Thomas Callie's
[49:05] mental health did it, quote, absolve him
[49:09] of his own criminal responsibility.
[49:11] So it couldn't absolve the defendant's.
[49:13] Can I, questions along that line?
[49:17] I mean, it sounds like why you plotted
[49:18] in the alternative, you acknowledged
[49:20] that the trial court didn't really get it wrong
[49:23] trial given what was presented to the trial court. The real claim is that trial
[49:28] counsel didn't perform effectively and given the trial court what you think was
[49:33] necessary. I think that's fair although I do point out in the brief that there are
[49:40] several instances where there were questions that I would argue we're not as
[49:47] But instead went straight to questions of his own mental illness.
[49:53] The use of the same Glock 21 as his father used to lead suicide.
[49:57] And possibly a trial judge who would be more open to the relevant standard,
[50:03] which the law holds.
[50:06] Well, it's not just relevance.
[50:08] It's also rule four, three, you have to pass.
[50:11] Not just relevance.
[50:13] Well, I believe that Rule 401 very clearly makes this relevant evidence.
[50:20] And, Rule 403 doesn't hold when you apply it to the significance of this evidence.
[50:26] This does not substantially outweigh a financial effect.
[50:29] All right.
[50:30] On the end effect of the assistance side, a couple questions.
[50:34] One is, my understanding is, in the mental health evidence, have that been admitted?
[50:39] There would be plenty of stuff that might show that Mr. Kelly had serious mental
[50:44] illness, but there would also be statements he made along the way in some of that
[50:51] material in which he said, unlike what you, your trial counsel, got him to testify
[50:58] trial where he recanted, you would be able to show earlier statements where he said
[51:03] that Mr. Crouch came up with the plan and directed him to do it.
[51:09] So that would significantly undermine a defense in which you get Mr. Kelly at trial to say,
[51:16] to recant, if you could then show that earlier in an in a mental health setting,
[51:21] he actually said exactly what the state was claiming it's there in the case was.
[51:26] Okay, why isn't that then a strategic call?
[51:29] comes up a lot in death penalty cases where there's mitigating evidence, but in
[51:34] that same mitigating evidence, there's a lot of aggravating evidence, and we
[51:37] generally say, that's a call for lawyers to make on this.
[51:42] And that's actually what the trial attorney, a defense attorney who had many murder
[51:47] cases had to deal with during our hearing on the amended emergency trial. So when
[51:52] we talked with that trial attorney, he made clear using his words, it never
[51:59] cross to his mind, that question wouldn't be admissible.
[52:02] First, it doesn't really matter what that lawyer thought.
[52:06] The question is what a reasonable lawyer would have done,
[52:09] under strict.
[52:11] And so the question I have is, can you not say that any reasonable
[52:16] criminal defense lawyer would have made the strategic call,
[52:20] I'd rather proceed with this guy who is recanting a trial
[52:24] and saying he did it and my client didn't have anything to do
[52:27] with it. Or would I rather try to show that he's crazy, but along with showing
[52:33] he's crazy, the state is going to be able to show that earlier he said that
[52:38] my client told them to do it. I agree with you that the reasonable attorney
[52:45] standard is the standard for one of the strictly wrongs, and that would be
[52:50] whether it was harm. But the first question is, was this a strategic decision by
[52:56] Now, the strategic, the first promise strictly, the decision performance, we have said
[53:03] over and over and over again, the question is, what a reasonable lawyer would do.
[53:08] You don't get the call trial counsel later on who says, I blew it and you and went.
[53:14] The question is, what a reasonable lawyer would have done.
[53:17] And so what we have to decide is, could any reasonable lawyer have made that strategic
[53:23] decision. Not was it actually made? Not that the lawyer in hindsight say testify about
[53:29] whether they considered it. And so what do you, is it, could any reasonable
[53:34] lawyer have looked at this and said, this is a hard one, but I think I'm better off
[53:39] with my recanting the state's main witness who's recanting here, saying exactly what I
[53:45] would like him to say on direct. But this trial counsel, Justice Nogyes, did not say,
[53:52] I didn't get into that stuff because I made a strategic decision that the harm outweigh
[53:58] benefit.
[53:59] But that doesn't matter.
[54:00] It's an objective standard.
[54:02] That was Justice Namie's question.
[54:04] So the objective question is not what this guy said, but would every other competent lawyer
[54:11] have to have said exactly the same thing, or could a competent lawyer have made this
[54:14] decision?
[54:15] I'm agreeing with the standard, Your Honor, but what I'm disagreeing with is the factual
[54:21] basis of what you're applying into.
[54:25] This trial attorney acknowledged that there was a cost-benefit analysis.
[54:32] This trial attorney made the strategic decision, which no one is arguing is unreasonable.
[54:39] Now I'm not arguing it's unreasonable, but the state's not arguing it's unreasonable.
[54:43] What we're saying is we have to rely under the case law first and foremost with the decision
[54:49] they made and then announced an analyzing. In this instance there are pieces of the state's
[54:56] case that they were concerned about bringing out this trial council was concerned because
[55:02] just like the state's videotape interview of Thomas Kelly, Thomas Kelly does say, initially
[55:10] I heard Cole tell me to do it. But later on those on and on about why he doesn't believe
[55:19] that's the case anyway. So when the trial attorney says, very clearly, I have no strategic
[55:28] reason not to have called Dr. Schaefer. Unfortunately, our case law just says over and
[55:34] over and Strickland itself, if you read Strickland, the leading US Supreme Court case, says it is a
[55:41] reasonable lawyer question. It is not a question of the actual lawyer. It is what a
[55:47] reasonable lawyer would do. And I hear you saying that it is, it was a reasonable
[55:51] call. You disagree with it. Trial counsel later said maybe he disagreed with it.
[55:58] You know, you're just as nice what I disagree with is the antecedent to it.
[56:02] I'm not disagreeing with the standard of review. You're assuming that it, whether it was
[56:10] a reasonable call, is an issue of whether or not this trial lawyer made some decision
[56:16] not to introduce the subject.
[56:18] Now, my it, my it question is, it is could you or me, or any other criminal defense
[56:27] lawyer in Georgia, use competent, reasonably have looked at the situation, putting
[56:32] aside what actually happened with the trial lawyer, the Representative, Mr. Krauch.
[56:37] Could any reasonable lawyer have looked at the situation and said, I think it's better.
[56:42] I think with all of the information you later developed at the motion for new trial
[56:47] hearing and said, I think it's better off going with this recanting witness and whatever
[56:54] I can get in about his mental illness than putting on all this other mental illness
[56:58] evidence which comes along with his statement earlier that Crouch told him to do it.
[57:07] Justice Nomias.
[57:09] What's the answer to that question?
[57:11] The answer is.
[57:12] that any reasonable order made that decision, not any other situation, just in any
[57:18] reason.
[57:18] Any reasonable attorney could have made either of those decisions.
[57:20] Well, then, then you're going to lose.
[57:23] Then this reasonable attorney, though, made it very clear that we begin, as the Supreme
[57:30] Court does, repeatedly by asking, the burden is on the defense counsel to call the trial
[57:37] and the question of whether or not a decision was strategic is the first hurdle.
[57:44] If the trial council says it was strategic and we want to show that was an unreasonable strategic decision,
[57:51] then we've got that kind of face. What's good for the goose, it's good for the gander.
[57:55] We're not allowed to come before your honor and I've been here many times and attempted to do it.
[58:02] It's impossible for me to say to this court, look, ignore that strategic decision
[58:10] stuff. You always begin with it.
[58:12] Does it matter whether trial counsel characterizes his decision or his course
[58:17] of action as strategic?
[58:19] It matters in the initial inquiry to decide, first of all, how we're going to take
[58:24] as if you had come in and said, I'm going to do it.
[58:26] Then there is absolutely no grounds upon which the state to argue it was a strategic
[58:33] decision.
[58:35] Well, the 11th Circuit has said something very different about what a strategic
[58:40] decision is.
[58:41] They had said, for instance, in the Chandler in bank case, they said, what is strategy
[58:47] is the course of action that a lawyer decides to take that he is neither compelled
[58:53] nor forbidden by law to take.
[58:55] So wherever a lawyer has discretion to do something or not do something, if he does it or does not do that,
[59:01] that is his strategy, whether he calls it strategy or not, whether he's thought it through or not,
[59:06] that is his strategy. How do you respond to that?
[59:08] In this instance, he was forbidden by the trial court to do a thing he believed to be the only defense in this case.
[59:17] That everyone argued was the only defense in this case.
[59:20] And this stuff was relevant and admissible and it's absence had a chilling effect and made the sole defense impossible to receive.
[59:28] I'd like to reserve the rest of my time. Thank you.
[59:31] Thank you, Ms. Ho.
[59:45] Chief Justice Melville.
[59:49] I want to be in kind of the second issue that Justice Y'all are questioning about.
[59:55] And that is the...
[1:00:00] 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,
[1:00:29] because what was said to her by Mr. Kelly would harm my client.
[1:00:37] During the trial of Kristen Beeson, who is the girlfriend of the shooter, Mr. Kelly,
[1:00:42] gave me a detailed statement of what a firm about how it was planned, how the appellate
[1:00:49] playing the acts, what was done, about going to buy a tarp, how the appellate gave money
[1:00:56] to Mr. Kelly and Mr. Kelly to get by a talk from Walmart to lay out on the ground, how
[1:01:02] the victim, how the appellate to the victim and then Mr. Kelly were to walk into the house
[1:01:08] to kind of set up this emergency.
[1:01:11] The Christians even gave that very specific detail in a statement and also during their testimony
[1:01:16] during trial.
[1:01:18] This is the same exact information that Mr. Kelly gave to Dr. Shores and to Dr. Sachi who was
[1:01:26] hired by this trial council, Mr. White.
[1:01:30] These same exact facts were given to both of them.
[1:01:34] Trial attorney, or trial attorney during the court, Mr.
[1:01:37] Bruce, said, in his most pretty trial,
[1:01:41] I made a decision not to call her Dr. Schwarz,
[1:01:44] because that would harm my client.
[1:01:46] That would have been good because, as council has said,
[1:01:51] the only person who came into court who
[1:01:52] You said a complete detailed statement of what happened that night, where Mr. Kelly's
[1:01:59] girlfriend.
[1:02:01] That is obvious, as you see, you can assume there is no doubt about that.
[1:02:06] Looking back, as this court has said in Strickland and cases before this court, we will do
[1:02:12] this.
[1:02:13] You do not look back and say, well, would you have done it different in hindsight?
[1:02:18] That is not a standard.
[1:02:19] the standard is a competent attorney, make that same decision.
[1:02:25] I would argue to your honors that obviously a competent attorney would not want to bring
[1:02:30] in two expert opinions, that if that was called by Council, by Council, by Council,
[1:02:36] trial council, that then, all across, I would be able to bring out of them that, that
[1:02:42] that doctor, work or work, what a part of the matter, that is just plain strategic decision.
[1:02:52] Council did not show how to act, was it effective, in regards to, first.
[1:02:58] Council, let me, let me ask, did Defense Council attempt to elicit testimony during Mr. Kelly's
[1:03:09] cross-examination about his mental health status.
[1:03:14] The question, to an extent, I would say, yeah, the question, the one question I believe
[1:03:20] it was asked regarding some mental health was, do you suffer from bipolar depression?
[1:03:26] Page 702 of the transcript at that time where you being a bipolar, I was, and then there
[1:03:32] was an objection.
[1:03:33] Absolutely, yes.
[1:03:34] And as I understand the transcript relative to Mr. Kelly's testimony, the court limited
[1:03:39] I wanted to question two questions about bias issues concerning turks maybe and racial bias.
[1:03:46] But prohibited any further inquiry of Mr. Kelly's mental status.
[1:03:50] Is that correct?
[1:03:51] Does that matter?
[1:03:52] In an analysis strategy and an ineffective assistance context?
[1:03:56] I don't think it in regards to ineffective.
[1:03:59] Yes.
[1:04:00] I don't think it goes in regards to ineffective because the trial attorney and appellate counsel
[1:04:07] So, can I share how that prejudice, Mr. Diapalli in this case.
[1:04:14] The fact that someone has bopolar depression, unfortunately that is an issue that many suffer.
[1:04:21] But there was no evidence or no information brought forward to the court, no proper trial
[1:04:26] counsel, or proper by appellate counsel, how that would somehow affect and make Mr. Kelli
[1:04:33] do the agony.
[1:04:34] So, you're getting into the issue of prejudice, but I want to go back to what Ms.
[1:04:39] Ho left us with as she left up here, which was it can't be a trial strategy if I was never
[1:04:45] given the opportunity to get that testimony.
[1:04:49] In other words, we can, you've heard questions concerning why it would have been, or could
[1:04:53] have been, in the minds of a reasonable lawyer, a reasonable strategic decision to not elicit
[1:04:58] that testimony.
[1:04:59] And there are other reasons that I can think of why that might not have been, including
[1:05:02] that if you listed that testimony from Mr. Kelly in light of Mr. Krause's defense,
[1:05:08] it would go to support Mr. Krause ordered him to do it because he might have been more
[1:05:13] susceptible to that sort of influence on Mr. Krause.
[1:05:15] That could be a good reason not to listed that testimony, not in addition to the fact that he
[1:05:19] also would get on the stand and have to recount his testimony.
[1:05:23] But, but this hope suggests that we never get to the reasonableness of this strategic
[1:05:27] decision relative to Mr. Kelly's testimony because the trial for prohibited him.
[1:05:32] He clearly had not made a strategic decision to not inquire
[1:05:35] as to Mr. Kelly's mental health,
[1:05:37] because he tried to get it in.
[1:05:39] He tried to get in the basic facts that he suffered
[1:05:42] from my home work.
[1:05:43] Also there was a, I would argue to your honor
[1:05:46] that Justice Boggs that he also, in regards to mental health,
[1:05:50] the fact that his father committed suicide.
[1:05:52] I'm not saying that that's a mental health issue,
[1:05:55] but that's about your ass about mental health issues.
[1:05:59] I believe the Council, the trial council was trying to relate that also to the mental
[1:06:05] health issue.
[1:06:07] The trial strategy would be, would you call witnesses to help support that by far or any
[1:06:16] other issues could affect someone to do an act without being forced or that did Thomas
[1:06:24] Kelly, do this act on his own without any push from a pellet.
[1:06:31] And so, to argue that just saying someone is bipolar, that, and to then go, well, that
[1:06:38] in and of itself is just a strategic error, or not a strategic error, or ineffective.
[1:06:43] I don't think you can make that leap.
[1:06:46] I'm not sure if that's sufficiently answering your questions.
[1:06:50] His trial strategy was to ask these, it is by opinion, yeah, my belief is that his
[1:06:58] trial strategy is what he said, much refraught, where are you suffering from these issues?
[1:07:03] Where there are different issues you are suffering with?
[1:07:06] Well, that in itself, including a delusional belief about some impending attack, right?
[1:07:12] Including some delusional belief about an impending attack by Turks against the Swedes.
[1:07:18] That was something that he had said before.
[1:07:21] So your understanding is that was where he was trying to go.
[1:07:26] That's a trial that didn't get there.
[1:07:27] Correct.
[1:07:28] With a person who is suffering from some delusional belief about an impending attack be perhaps
[1:07:35] more or less likely to commit an act of violence on their own?
[1:07:41] I would argue that it depends on what the attack is.
[1:07:45] I think you have to look at it.
[1:07:46] The trial, the trial court allowed trial council to ask about any biases, anything of that
[1:07:54] day regarding African-Americans or Mexicans, anything of that nature.
[1:07:58] If the depending attack was, I believe that African-Americans are coming in to the House,
[1:08:05] to our community, or Mexicans are coming into the House or community and doing, and I believe
[1:08:12] Mr. Kelly said, I'm going in to Sweden and rent women.
[1:08:16] If that were, I would argue to you that if that were changed, you're saying African Americans,
[1:08:21] Mexicans were coming into housing county, water robbing, and raping and pillaging, then
[1:08:28] I would argue, and I would support that argument, I guess that would be relevant.
[1:08:31] That would be a issue because I would show bias and a reason why he would commit the acts
[1:08:36] that he did.
[1:08:37] But we're talking about someone who's delusioned.
[1:08:40] So, if we're starting with the presumption that this person is delusional, might not part
[1:08:47] of the delusion be that somehow this thing with sweetness somehow relevant to what's going
[1:08:52] on here?
[1:08:53] It would be except that Dr. Schwarz in the after the evaluation said, when he committed
[1:09:00] the acts, he would not under some delusion that calls him to commit those acts.
[1:09:05] And so I think you have to separate the two.
[1:09:08] Is he delusional about something?
[1:09:11] I would submit to you.
[1:09:12] There's no disagreement regarding that.
[1:09:15] The fact where he, job fact, the Turks were inviting Sweden.
[1:09:20] I don't know, but does that relate to the fact
[1:09:22] that the acting committed does that delusion affect that?
[1:09:28] And according to the evaluation done, it is not.
[1:09:31] And so I think, yes, there is delusion,
[1:09:34] but does it impact the act that occurred when two victims were shot and killed?
[1:09:39] Councillor, on the ineffective assistance claim, it is my understanding that the
[1:09:46] appellants claim is essentially this. My trial counsel made the strategic decision
[1:09:51] that it would be helpful to my defense to get into Mr. Kelly's mental illness and
[1:09:57] mental health issues. And therefore, it was unreasonable having made that strategic
[1:10:03] decision for trial counsel to fail to do anything to help get that evidence in.
[1:10:13] I understand the state's position, on the other hand, to be that trial counsel,
[1:10:19] for it being a good trial lawyer, is being flexible and opportunistic and sometimes you have to make very
[1:10:24] nuance calls.
[1:10:25] And so a reasonable trial lawyer could very well say, it would be helpful to me to get in this
[1:10:31] mental health evidence. So long as I can get it in through my cross-examination of Mr.
[1:10:36] Kelly, but if I have to start getting into other things, that's going to have a lot
[1:10:40] of downside to it. And so if the judge will let me get away with it on cross-examination
[1:10:45] of Kelly, I'd love to have it. But I'm not going further than that. And that itself was
[1:10:50] a reasonable call. Is that essentially the state's position on the ineffective assistance?
[1:10:54] That is a lot of it, because in the motion for neutral trial council said, I wasn't going
[1:11:00] when she called Dr. Shores.
[1:11:02] What she had to say would have hurt my client.
[1:11:06] And her coming in, Dr. Shores coming in and saying,
[1:11:09] when I interviewed Mr. Kelly,
[1:11:12] and he said, he gave us the money
[1:11:14] to go purchase the tar.
[1:11:15] The reason why, because of the drug deal,
[1:11:20] are money owed in regards to drugs.
[1:11:24] All that, the proceedings, the reason why the murder occurred,
[1:11:28] for leading up to planning, I will also go into the disposing of the bodies, the cleanup
[1:11:35] who was in charge, who, for lack of a better term, gave directions to all the other individuals
[1:11:42] there that night.
[1:11:42] That being the appellate, all of that would have significantly, significantly harmed the
[1:11:49] appellate during trial.
[1:11:51] And so maybe distillate it down as the idea that there could have been a number of different
[1:11:55] vehicles presenting that evidence that could have been helpful to the defense and
[1:11:59] council made a strategic decision about which vehicle to try because some had
[1:12:04] more downsides than others and I'm not sure if they're just one I'm not sure
[1:12:09] if there are a number of vehicles to try to get that in but the vehicle is just a
[1:12:13] splatbo is suggesting maybe one is cross-examination the other would be calling
[1:12:16] an expert absolutely and I apologize just other than those absolutely that the
[1:12:22] the one that you could try to get into without getting these experts, experts on the witness
[1:12:27] dance you say, when I interviewed him, he told me AB&C, that is consistent and completely
[1:12:35] identical to what Kristen Beuthen said, based upon the facts of also during trial videos from
[1:12:43] Walmart of where Ms. Beuthen and Mr. Kelly went in and purchased the tarp. The fact that
[1:12:49] The money was paid and what happened the fact that when the bodies were disposed who was there
[1:12:56] That would have been identical not only from Dr. Shores, but Dr. Sachi who was his expert
[1:13:02] And so that bring again to help and because I will argue and I will suggest it court that when mr. Kelly testified
[1:13:09] 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
[1:13:17] but I don't remember to this date.
[1:13:19] And so he was backtracking on the witness stand.
[1:13:22] But then you have two experts coming in saying he told us this
[1:13:25] multiple times, that would definitely harm the appellate.
[1:13:32] In regards to the first issue, and we did not address that much.
[1:13:37] So far, the trial court did not have the benefit of a proffer.
[1:13:41] It's been cited in the brief to this court.
[1:13:45] other than I just want to get into this information. There was no showing about how this
[1:13:49] information or evidence would unravel it. So I would submit that the trial court was
[1:13:54] not erroneous, did not make error in that decision, and I would rest upon the briefs have been
[1:14:00] submitted with that. If there are no further questions, I will yield. Thank you Miss Wharton.
[1:14:06] I will yield my time. Thank you. Thank you.
[1:14:25] Just as for this is the point, what Justice Blackwell points out is that we're focused
[1:14:32] on the one piece of evidence, Darcy Shores' testimony, Dr. Shores' testimony, that had
[1:14:38] a cost benefit reasonable, competent, person attorney decision to be made.
[1:14:44] whether I agree with the attorney's decision or not doesn't matter.
[1:14:49] The question is that there was no strategic decision and in fact the attorney
[1:14:55] said I obviously didn't have a strategic decision.
[1:15:00] 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
[1:15:29] leads to impulsive and aggressive behavior.
[1:15:33] This issue of delusional compulsion
[1:15:36] is directly related to Thomas Kelly's understanding
[1:15:40] that Ruben Miranda was there in an threatening cold crouch.
[1:15:46] Ruben Miranda, who Thomas Kelly describes as a Mexican,
[1:15:51] in his mind, based on videos, these crazy videos he'd
[1:15:55] seen and told everyone about Mexican's raping women and what he testified to and all the
[1:16:03] witnesses that were there at the home if I may finish this testified to.
[1:16:06] Thank you, Ms. Hook.
[1:16:07] Thank you.
[1:16:09] Thank you.
[1:16:09] Thank you all.
[1:16:10] This court is adjourned.