PEOPLE v. WILLIAMS, JR. (ROBERT LEE)

Appellant’s Reply Brief

Cal.August 29, 2012

SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, SUPREME COURT Plaintiff/Respondent, F | L E D v. AUG 29 2012 ROBERT LEE WILLIAMS,JR. ‘ Defendant/Appellant. Frank A. McGuire Clerk Deputy AUTOMATIC APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURTOF RIVERSIDE THE HONORABLE DENNIS A. MCCONAGHY CSC No. 8118629 (Riverside County No. CR64075) APPELLANT’S REPLY BRIEF H. Mitchell Caldwell 6240 Tapia Drive, Unit E Malibu, CA 90265 310.506.4669 St. Bar #70362 Attorney at Law Attorney for Appellant DEATH PENALTY PO IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff/Respondent, Vv. ROBERT LEE WILLIAMS,JR. Defendant/Appellant. AUTOMATIC APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF RIVERSIDE THE HONORABLE DENNIS A. MCCONAGHY CSC No. $118629 (Riverside Courtty No. CR64075) APPELLANT’S REPLY BRIEF H. Mitchell Caldwell 6240 Tapia Drive, Unit E Malibu, CA 90265 310.506.4669 St. Bar #70362 Attorney at Law Attorney for Appellant TABLE OF CONTENTS TABLE OF AUTHORITIES 2...ecssscssssssscenssessscscenssersscesscensosenssceeecssessecscncesseesosessersensasseges iv INTRODUCTION........cccccsscssssesreccnsessscscsecsessssssensesecesssenscnensceessesesesessssseesresaseesgereassaseassessenseses 1 GUILT ERROR PHASES2cccsssscsesesenssssssverevsscssessscecsnsecnssecenseeessssscseensecesneessnsessasenseneses 2 ARGUMENTI: DELAYS AND OBSTRUCTIONS DURING THE SEVEN-YEAR PRETRIAL VIOLATED ROBERT WILLIAMS’ RIGHT TO A SPEEDY TRIAL AND COMPROMISEDHIS ABILITY TO DEFEND HIMSELF IN VIOLATION OF THE SIXTH AMENDEMEDNTT.......ccsscccsssssssssecsscesscersscesssccsscesssscesnsscecsesssnessosnssssssessscessonscssesssessesones 2 a. Robert Objected Six Times to Continuances............cccscssseessscssseresssneessessnssssseesesoees 4 b. Continuances Caused by Prosecutor’s Discovery Obstructions............scssccsseeeeees 8 c. Continuances Caused by the Court’s Failure to Sever............:cssscssssssessscsssessereees 12 d. Systemic Flawsin the Appointment of Alternate Defense Counsel Delayed Robert’s Trial Twenty-Six MOontt9.............csssssscsssesscccssscssssserssssssessssscccsesscsesseseessaneas 13 e. Robert’s Assertion of His Right to a Speedy Trial...cccscssececsresseeesseeeees 15 f. The Denial of a Speedy Trial Prejudiced Robert’s Defense ............ccssessesseeeeeenes 16 ARGUMENTII: THE STATE’S FAILURE TO INVESTIGATE AND PROVIDE TIMELY DISCOVERY OF THIRD-PARTY CULPABILITY VIOLATED BRADY STANDARDSIN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.......ccssscscssscsnscssesssessessssessssesceseesscensssnsncesaseasecsensssatenseceseates 21 ARGUMENTIl: THE STATE’S FAILURE TO PROVIDE DISCOVERY OF MS. LOFTON’S WHEREABOUTS VIOLATED BRADY STANDARDS AND HENCE THE DUE-PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT...0......ccccsssssssneseseees 25 ARGUMENTIV: IN DENYING ACCESS TO THE PRIMARY PROSECUTION WITNESS, THE STATE PRECLUDED ROBERT WILLIAMS THE OPPORTUNITY TO MEANINGFULLY CONFRONT AND CHALLENGE LOFTON'S TESTIMONYIN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS...ccesssssseseeeenes 29 ARGUMENTV: IN LIMITING THE CROSS-EXAMINATION OF LOFTON, THE COURT DENIED ROBERT WILLIAMSHIS OPPORTUNITY TO CONFRONT AND CROSS-EXAMINE THE PRIMARY WITNESS AGAINST HIM........ccccsssseserssssessceseeeenes 31 ARGUMENTVI: ROBERT WILLIAMS’ CONSTITUTIONAL RIGHT OF SELF- REPRESENTATION WAS VIOLATED WHEN THE COURT REVOKED HIS RIGHT OF SELF-REPRESENTATIONIN VIOLATION OF THE SIXTH AMENDMENT....... 34 ARGUMENT VII: ROBERT WILLIAMS’ CONSTITUTIONAL RIGHT OF SELF- REPRESENTATION WAS VIOLATED WHEN THE TRIAL JUDGE FAILED TO REMOVE STANDBY COUNSEL DESPITE COUNSEL’S CONFLICT OF INTEREST WITH ROBERT uu.cssssssssssececssssessssacseesscssssseasessessesscesereeseesaseeseeseassasenetsesseenssasseesssasearanses 40 ARGUMENTVII: DISMISSAL OF TWO AFRICAN-AMERICAN PROSPECTIVE JURORS WITHOUT CAUSE “STACKED THE DECK” AGAINST ROBERT WILLIAMS, DEPRIVING HIM OF DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT.......cscscssssccsssscssccscsscssessesssssesessesessscssesessseassecenssesarsseseeseneases 43 ARGUMENTIX: ROBERT WILLIAMS’ CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY WAS VIOLATED WHEN THE PROSECUTOR USED PEREMPTORY CHALLENGESTO DISMISS THREE AFRICAN-AMERICAN PROSPECTIVE JURORS BASED ON GROUP DISCRIMINATION.........csccssssssesesseeesees 46 ARGUMENTX: DEATH THREAT AND GANG ASSOCIATION TESTIMONY UNDULY PREJUDICED ROBERT WILLIAMSIN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT............cscsscssssscsersscscsessrceses 35 A. Death Threats........ccscscscscssssessncssscsscesesssssscnsessssssecsessssssesonsssssoneseassesssacesssecesesensees 55 Db. Gang Affiation «2... eessstscssesccsccesessesscsescesessssesssseesssessccecesacseenecsssaesensenssecessteesets 62 ARGUMENTXI: THE TRIAL COURT ERRED IN FAILING TO LIMIT THE JURORS’S USE OF THE DEATH THREAT TESTIMONY.......... cc cecssssscessssseesssrsessessnsees 66 ARGUMENTXII: JUROR MISCONDUCT DENIED ROBERT WILLIAMS THE RIGHT TO HAVE HIS CASE HEARD BY A COMPETENT JURY IN VIOLATION OF THE SIXTH AMENDMENT........ccccssscssscssssscscesensssssssecescseesencesesccssscescesossseecesessassssassaeseeeses 68 ARGUMENTXIII: THE PROCESUTOR’S PATTERN OF CONDUCT INFECTED THE PRETRIAL AND TRIAL WITH SUCH UNFAIRNESS AS TO RENDER ROBERT WILLIAMS’ CONVICTION AND DEATH SENTENCE A DENIAL OF DUE PROCESS...eccessssssesscsessnssssssessesessnsssssscsscoessscssssssecneseseesaseessssecsesscesesacacenesesacsesssessesanears 79 ARGUMENTXIV: CUMULATIVE ERROR AT THE GUILT PHASE REQUIRES REVERSAL OF ROBERT WILLIAMS’ CONVICTION.......ccsssssssssesscecssccsccesssssssserscssnsees 83 PENALTY PHASE uu... .ccccsssssessssensccesesssscssscsesscscssessssecsecsssssonssceasossessensessesesaseaenessesesasessseseeers 85 ARGUMENTXV: JUROR #1 WAS IMPROPERLY EXCUSED, DEPRIVING ROBERT WILLIAMSHIS RIGHT TO A COMPETENT, IMPARTIAL JURY AND DUE PROCESS IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS...85 ARGUMENT XVI: THE COURT FAILED TO PROPERLY INSTRUCT ON THE STANDARD OF PROOF PRIOR TO IMPOSING THE DEATH PENALTY.............:0000 87 il ARGUMENTXVII: DUE PROCESS OF LAW NOW FORBIDS THE IRREVOCABLE PENALTY OF DEATH TO BE IMPOSED UNLESS GUILT IS FOUND BEYOND ALL DOUBT 02... ec cssssscescecsssessssecsensrsosesossscessssscnncesssoseusssnsssesesssseneseessssesesesseeeussssssvescusenseeseseneseteatens 88 ARGUMENT XVHUI: CALIFORNIA’S DEATH PENALITY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT ROBERT WILLIAMS’ TRIAL, VIOLATES THE UNITED STATES CONSTITUTION 0...ecscsscssstecsrenseevenseerssseseseseneens 88 ARGUMENTXIX: ROBERT WILLIAMS’ DEATH PENALTYIS INVALID BECAUSE IT PROVIDES NO MEANINGFUL BASIS FOR CHOOSING THOSE WHO ARE ELIGIBLE FOR DEATH........cccscsssssscsscscscssesssssesssessssssssssssssnsenssssssansnssssnssensosssasnssesveeseneenasne 88 ARGUMENT XX: ROBERT WILLIAMS’ DEATH PENALTY SENTENCEIS INVALID BECAUSE IT ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTIONwu...cccscsceseeneeesnsenens 89 ARGUMENTXXI: CALIFORNIA’S DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDS TO AVOID ARBITRARY AND CAPRICIOUS SENTENCING AND DEPRIVES DEFENDANTS OF THE RIGHT OT A JURY DETERMINATION OF EACH FACTUAL PREPREQUISITE TO A SENTENCE OF DEATH IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION 0...cssssscsscsesssesesssscensssesersscescesssssscsessesesseensesssacsnevenssceesecssnanaes 89 ARGUMENT XXII: THE CALIFORNIA SENTENCING SCHEME VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FEDERAL CONSITUTION BY DENYING PROCEDURAL SAFEGUARDSTO CAPITAL DEFENDANTS WHICH ARE AFFORDED TO NONCAPITAL DEFENDANTSy....ccsccsssssssssssesessnessessensessseeesessesesesenseces 89 ARGUMENTXXIII: THE VIOLATION OF ROBERT WILLIAMS’ RIGHTS ARTICULATED ABOVE CONSITUTE VIOLATIONS OF INTERNATIONAL LAW AND REQUIRE THAT ROBERT’S CONVICTIONS AND PENALTY BE SET ASIDE1.0...ccsscsccsssrssssscesssesesssconsesssccesnscnsssceessuscasssssssnseeesenesesssoseesesssssencansceasessreseessessesacs 90 ARGUMENT XXIV: CALIFORNIA’S USE OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMSOF HUMANITY AND DECENCY AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS; IMPOSITION OF THE DEATH PENALITY NOW VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTIONuccccccssessecsreessnssceensnevssssessescensnesasssssesecnsessenseeessscasssessenssassnetes 90 ill TABLE OF AUTHORITIES UNITED STATES CONSTITUTIONAL PROVISIONS Eighth Amendment .........ccccccsccesecseeceeeeseaneceeeseaaseceseaeeseeseneeeseesnseeesenesieeseeressieseeesenengs 88, 89, 90 Fifth Amendment 0... ccccc ccccececcccssccessscsneeecessseeeeeeeeeeseeeesseeeeeeeessaeeeeeeceeseeeeeeessaeeeeeeeeensssaeeeeeeerses 89 Fourteenth Amendment ooc..cccc cc eccccececccccccccescceccescesecesseuueeeceseeeesesstiesesteeeees 24, 25, 29, 85, 89, 90 Sixth Amendment ......ee cee cece ce cesescesssessssecsuscesesessesesseeeescssessseesecessraaeass 15, 29, 43, 68, 79, 85, 89 UNITED STATES SUPREME COURT CASES Adams v. Texas (1980) 448 U.S. 38oececccecscsececeesseeseesssensaesenacesseeesessessecnseesseeessneeeserseesseesseeas 44 Aetna Ins. Co. v. Kennedy (1937) 301 U.S. 389eeneveneeeseeeceeeneeeaecaceseeeeaeeeeeenseeeesenaesesners 15 Barker v. Wingo (1972) 407 U.S. S14eeceeceeeeeeeeeeeeeeeeeeeeneeceaeesseseaeeseeteeeeaeeeren 8, 15, 16, 17, 18 Brady v. Maryland (1963) 373 U.S. 83 wceeccecssceceseeceseeesetececseeseeeeereceaecneseaeenseeseeceeeseeessesens 22, 24 Cone v. Bell (2009) 556 U.S. 449 occcccecceccsessecesceceseeeeneeeseceaeesieeeeseeecssenseseeseessatessaaesenetaseesagenes 23 Doggett v. United States (1992) 505 U.S.647oo ceeccccscesecseceseeeeeeneetessesecesresetsreresetenstensesseaes 8, 89 Faretta v. California (1975) 422 U.S. 806 wo..eeeecceesceeeeeeseceeeeenseees 7, 34, 35, 36, 37, 39, 40, 42, 81 Gray v. Mississippi (1987) 481 U.S. 048 ooo cccieeeeeeeeeneeeseeeeceeeceseeeeseseeseescseeseeeesesseseneeeseseeeenggs 44 McKaskle v. Wiggins (1984) 465 U.S. 168 ooo. eeecccescceseeeeceneceeesececeseececsesseeceseeeeesseeenstsnereneees 42 Pennsylvania v. Ritchie (1987) 480 U.S. 39 ieeeee erne rence eeeecesersesseesesessesseesereseesesseeenes 30 Remmerv. United States (1954) 347 U.S. 227 .oecccccccecscececseseeeseecerceseeseseeaeseaeecsesescessessesasesseeennes 69 Wainright v. Witt (1985) 469 U.S. 412 oeeeceseceseeeseeeeeseeaecneeeteeseeeceseseesseceaeteresaeecnnereeeenas 44,45 UNITED STATES COURT OF APPEALS CASES Kenny v. Lockyer (9"" Cir. 2004) 379 F.3d 104] v.cccccccsssscssscssessessessstssessessssssessssesseseseesssesecseeeveees 65 United States y. Barrett (9"" Circ. 1983) 703 .2d 1076 ..eccccccsscssssssesssessssesssessessessseseesessessteseceaceeses 74 United States v. Garcia (9"" Cir. 1998) 151 F.3d 1243 ooo ccccssesssesssesssssesstessessseessessessesssesseesessvee 65 United States v. Hankey (9Cir, 2000) 203 F.3d 1160 .ccecccccccseecssessessessessesstesseesteseesseeeeseen 66 CALIFORNIA SUPREME COURT CASES Alvarado v. Superior Court (2000) 23 Cal4L121 voccceccccscsscssvesesssessesessnesscsessseseveevsvestseeseess 28, 30 In re Carpenter (1995) 9 Cal.4634 oeccccecccecsscsecsesscssessessessesscsseessesscsssseesrsssssessussesessaessneseeneeess 78 In re Hamilton (1999) 20 Cal.4273 voececccccsssssescssessessesssssesseceresssesssssssssessussseessssussessnessaseeceseeees 78 In re Hitchings (1993) 6 Cal.4” 97 oc ceccccesessesssescsessesesessessssssetsasseeeeseeseersesteereesesessseeeseveevesseeteen 78 Mercer v. Perez (1968) 68 Cal.2d 104... eeeceeeceseeeceeneeeeeeesseeneessaeeesesseesateneesaneseraesnetenaeenaeees 55 People v. Ashmus (1991) 54 Cal.3d 932 oo. ceeceeccccceeccseeeeneesseeeneeeeeeeneeeenecesesaeseaeeeessaaeeesaeeneeseaeseneee 85 People v. Barnwell (2007) 41 Cal.4" 1038 ..ceccccccscssssssessesssesseseseevssssevessesecssessssereeasecsesesneevens 85, 86 People v. Burgener (1986) 41 Cal.3d 505 woeeeccceeecccseeeceeeeeeiseeeneeeeneenseeenneeseeneesnneesieeenea 56, 77 People v. Carpenter (1997) 15 Cal. Ae 31D cccceecesessesssesseseseeserssessssstessessseesnssanesessessseseaceeeenenes 15 People v. Cooper (1991) 53 Cal.3d 771 oececcccscecencceeesnseeneeeeseeneessecessesecnaeeneseaesesnneseesenaeenaeees 78 People v. DeSantis (1992) 2 Cal.4™ 1198 ..ccccccssssssssesseesssesssesssessessssseseesssscssecaseesssecseeseessseseeaseeses 77 People v. Espinoza (1992) 3 Cal.4! 806 ..occcccccsesscescscvssesssrsssessesavsssecssscssssssesssesaresstsecsnesssesees 76, 77 People v.Farnam (2002) 28 Cal.4? 107 vceccsssescesseseseessessessessboceeceseseceeceseeneeenaereeeeonsaeaaes 86 People v. Fields (1983) 35 Cal.3d 329 oo..ecccccceccccesseeeeeeeneeeneceneeeseceeeeeseesessseeseesseseaeeeseeeeeeneeeseaees 85 People v. Foster (2010) 50 Cal.4" 1301 vcececceccsscscessesvesessesssestesusssessessessessessssssssseessess 72, 73, 76, 78 People v. Green (1980) 27 Cal.3d 1 oi.ceceeecsccececeeeeceeneeeeecneeteneesaeeeeeseneceeesaeseaeseesearesseaeseeeesaeeeatens 55 iv People v. Hammon (1997) 15 Cal. AODivecccsccsesscsessesecsvessessesvscssesstesesessessnsssseticsiesssesseeeneeees 30 People v. Harris (2008) 43 Cal.41269 oo ecccccccscessecssssssscsesssesssesssstisstsatstsssessssuesseseteseesnecsnsseee 78 People v. Howard (1998) 44 Cal. 3d 375 vec ccccceccesse recs ceerseersseeeeneeeecssseseeseeenseecseenseesasnasaeenes 46 People v. Howard (2010) 51 Cah4 1S vccccecccccscessessessessscscsssessesecsesstssscssesesssisssessssieestsseessesseeseeses 87 People v. Jones (1998) 17 Cal4279 occcccscsessesseesessessvsseessssesecseecssessussesessutsateeseetarsaeeessessses 69, 93 People v. Leonard (2007) 40 Cal.41370 v.ccccececsesssssesvescssvesscestsvssecssesacsesssecsressvsrerseseesseesseeseeses 85 People v. Lewis (2009) 46 Cal.4™ 1255 voccssccscsssessstsssssscesseesseecsstaesseseees 68, 69, 70, 71, 72, 73, 76 People v. Mason (1991) 52 Cal.3d 909...ec ececseneeeeres cee testeeseesnsesnsessesssseeeeseessesssaeeneenee 60, 61 People v. Nesler (1997) 16 Cal.4" 561 .cccecscssssssesssssssssssecsucsssessssesecssssescesecssssecsseesseecneenesaueecesveenes 78 People v. Nicolaus (1991) 54 Cal.3d 551 oo.eecere esse eeeeeeeseesesseeesseseneesseesssssseenseseseeeseanens 85 People v. Panah (2005) 35 Cal4395 oo ccccccsessessesssssesecscsssssscscsesssssessssssvsssessessesessnesessesesssessesse 28 People v. Rodriguez (1986) 42 Cal.3d 730 oo... eccececcecccseesecsesecescecsesseeseecnesssnsessecnessesaseasnesteeses 68 People v. Sanders (1995) 11 CalAP 475 vooccecccccsscssescesssesvssssssesscsesessssesscsesseeesecsscsessecsetaneavesses 85, 86 People v. Saunders (1993) 5 Cal. AY S80 a ecccecsssesesesscesesesesssesesstenssusscarsacsssssassecsesseeseaseaseaseseeans 15 People v. Stanley (2006) 39 Cal.4"° 913 ..ccccscscsssssessessssessessesssseesecseecsecatessiescsnecsessens 74, 75, 76, 78 People v. Stewart (2004) 33 Cal4" 425, 510. cocceccecccssessesssssecsecsscsessecssssssussssessessessessacstsseecseesveaees 69 People v. Sup. Ct. ofContra Coast County (1977) 19 Cal. 3d 255 viceccc cccceeneeeeeseneeees 79 People v. Terry (1962) 57 Cal.2d 538... ccccecccesceecsereee cess seseseceeeceseenesseeseeessssesseensasteneseasesresnasns 56 People v. Vera (1997) 15 Cal. AY 069 ccceccecsccssessssesscsseesesvesessusssesssssesssssvessessucsesseenseessesretseeseeses 15 People v. Weiss (1958) 50 Cal.2d 535 .ocicccececeteeceesesececeenseseseeceseesnecsscessssessesesseeseeneeaces 59, 61 CALIFORNIA APPELLATE COURT CASES Inre Wing Y. (1977) 67 Cal. App. 3d 69 oo.eeeeeeeececeeseseenssneseeeccnessesteeesnesneeepsasessesaeenees 62 People v. Memory (2010) 182 Cal.App.4” B35 oe eiccccceccessecesecenceteeeeseesceeeseeeaesesaeeeeneesseaeeeteeteatens 62 People v. Samaniego (2009) 172 Cal. App ATRccceeccseessesessessresessessiessissrsstssussseaeesseeseeseee 62 People v. Sherrick (1993) 19 Cal. App. 4°° 657 ..ccccccccccsscsscsssseesesessssesseseesesneeeuesnenesneeeneeneenseatsnee 79 CALIFORNIA STATUTES Cal. Evid. Code S110] .ccccccccccccccccssesseecereceseceeeeeeeesaeeseaeeeacnereseeressessaaeesseseeeneessaesneesenestaeseeaeness 62 Evidence Code § 352 ..ccccccccccccsssesecessceeeeeeeeeneeceseeseeeeneceaecesaeceeaeeesnecnsecenesesseeeserensiesessseeeseesseesers 55 Pen. Code, § 1054.7 ....ccccccccccccecsseeessneceeeteeseeeceneeeenaeeneeeseescceseeesessseeesesaeeseseeeseaeeseeeesenssaaeesies 30 Pen. Code, § 190.2 ccccccccccsccssseecsereeseccnececeseeersacessseeceseeeeneeessesescesaeceeeesesaseseseeeseeereeeeesseeessacanags 89 Pen. Code, § 190.3 ...ccccccccccscsseensseeseneceeeneeeseceecsrceseesseseesasesseeeseeeeseicnsseeeseserenecsecssgeseseeesaseseseersees 89 STATE COURT CASES State v. McDonald (2001) 143 Wash.2d 506 42.00... eicecceeceeseceesseesetseeeesnseseeaeesseeeneeseaseseesseteneens 42 INTRODUCTION The guilt phase of Robert Williams’capital trial was dominated by three significant concerns: 1) the denial of a speedytrial; 2) the discovery delays and obstructions; and 3) the revocation of the right to self-represent. In responding to Appellant’s speedy-trial concerns, Respondentflatly asserts that ‘Williams caused the delay,” and further that even if Robert’s constitutional right to a timelytrial wasviolated, there was no prejudice because the prosecution’s case was “ironclad,” even though it hung on the tenuouscredibility of Conya Lofton. (RB 22.) Respondent’s knee-jerk assertions aside,the reality is that Robert Williams’ eighty-three-month pretrial marathon is a grueling testament to what can transpire when a prosecutor systematically delays discovery in his refusal to comply with the most basic rules of discovery and ethical pretrial conduct. A prosecutor who viewed discovery notas his duty in fairness to the accused and the criminal justice system, but instead as a competition to disclose as /ittle as possible and, even then, only when compelled. A prosecutor who delayedtrial by making representations to court and counsel which were untrue. A prosecutor who concealed third-party-culpability materials for years until they are accidentally discovered by the defense. And then compoundedhiserror by insisting on immediately proceedingtotrial after this discovery, thus precluding any opportunity for the defenseto utilize the late-arriving third-party-culpability disclosures and so mounta viable defense. The delay was also contributed to bya trial judge who refused to recognize that trying two defendants in this capital trial was not feasible, even when it was apparent within the first monthsofpretrial that one defendant was adamant about bringing his case to trial while the other wasnot. As to the second concern, Respondentis dismissive of the multitude of discovery delays and obstructions attributable to Prosecutor Ruiz. They began with Mr. Ruiz’s successful efforts to insulate the State’s primary witness from any meaningful investigation as to her character and credibility, including her motivations in incriminating Robert, thus effectively precluding the defense from meaningful cross-examination of the linchpin witness. The discovery obstructions continued through the seven-year pretrial period, when in the monthsjustpriorto trial the defense accidentally discovered evidence of third-party culpability that the prosecutor had held in his possession for years without disclosure. Asto the revocation of Robert’s constitutional right to represent himself, Respondent asserts that the revocation was properin that Robert was engaged in dilatory tactics. Yet as the record reflects, during the ten-month period of self-representation, it was Prosecutor Ruiz who wassolely responsible for any delays. His absence, due to his illness and his discovery delays, wasthe sole reason for the delays, even though Robert wascast as the culprit by the prosecutor and court. With these clarifying facts in mind, Robert offers the following specific replies to Respondent’s Brief. GUILT PHASE ERRORS ARGUMENTI DELAYS AND OBSTRUCTIONS DURING THE SEVEN-YEAR PRETRIAL VIOLATED ROBERT WILLIAMS’ RIGHT TO A SPEEDY TRIAL AND COMPROMISED HIS ABILITY TO DEFEND HIMSELF IN VIOLATION OF THE SIXTH AMENDEMENT Respondentasserts, in part, that Robert’s speedy-trial rights were not violated because he consented to seventeen of the nineteen trial continuances. Respondent’s math is wrong. The record reveals that Robert directly opposed four continuancesof the trial date and two continuancesofthe preliminary hearing. The record also reveals that a further eight continuances, while admittedly at the insistence of defense counsel, were due to the prosecutor’s discovery failures. Furthermore, the record is clear that additional continuances werethe result of the court’s failure to sever Robert’s case from that of the co-defendant. Finally, there were additional delays caused by the revolving door of Robert’s appointed defense counsel. Despite Respondent’s characterization that Robert was somehow complicit in contributing to the extraordinary length ofthe pretrial period, the record belies this. Instead, the record is testament to the fact that Robert continually voiced his concerns, objecting to the almost unendingseries of continuancesthat resulted in an eighty-three month delay in histrial. Indeed, even the most cursory review of the record reveals Robert’s on-going and profoundfrustration in bringing his case to a jury. Given the extensive briefing in Appellant’s Opening Brief (pp. 29-73) and Respondent’s Brief (pp. 22-50), it is neither necessary nor prudent to revisit the circumstances surrounding the successive continuances. It is, however, necessary to both address and correct Respondent’s confusion as to the number of objections Robert maderelating to continuing both the trial and preliminary examination. Beyond Respondent’s errors in tabulating the number of times Robert objected to continuances, Respondenthas further opted to cast this issue in terms of the numberoftimes Robert consented to continuances. Respondent suggests that because Robert reluctantly assented to some continuances, that is the end of the discussion. Somehow, Respondent concludesthat a concession to a continuance denotes Robert’s agreement to that continuance. (RB 42.) This logic is flawed and grossly presumptuous. The majority of continuances to which Robert did consent were forced upon him by circumstances beyond his control, and in most cases the continuances were instigated by the prosecutor. It is important to note that it was this same prosecutor who failed to provide timely discovery years into pretrial, and that it was this very prosecutor whoresisted severance of Robert’s case from his co-defendant, thereby directly causing repeated delays and continuances. Furthermore, these delays were compoundedbythe appointment of numerous defense attorneys working for Riverside County’s Criminal Defense Panel, the sole mechanism for providing alternate counsel and which chronically failed to appoint counsel who could and would provide adequate representation. With each new appointment there naturally arose the need for each new appointee to take additional time to review Robert’s case in order to adequately preparefortrial. a. Robert Objected Six Times to Continuances It is essential to immediately disabuse this Court of Respondent’s contention that Robert only objected to two continuances. The record established that Robert objected to two continuancesofthe preliminary hearing and to four continuancesofthe trial date. The November 9, 1995, continuance of the preliminary examination to December1, 1995, was opposed by Robert (CT 15; RPT 31-36.); and, again, on November29, 1995, two days prior to the preliminary examination and following co-defendant Walker’s motion for continuance, Robert objected once more to the continuance. (CT 15; RPT 31-36 or 37-45.) Defense counsel initially voiced Robert’s opposition to this second continuance: “Mr. Williams prefers to have the prelim asset,” but eventually withdrew his opposition to the continuance. (CT 16-17; RPT 37-45.) But, although Robert’s attorney withdrew his opposition, Robert remained steadfast in his position, demanding a timely preliminary hearing. (CT 18; RPT 37-45.) Incredibly, however, Respondentstates that Robert waived time. On December 21, 1995, counsel for Walker once again moved to continue the preliminary examination. Robert, frustrated by the delays to date, refused to waive time and protested, “I want to come on and do this.” (RPT 57.) While thetrial judge was eventually able to elicit a begrudging waiver from Robert, Respondent’s assertion that “Williams again waived time...,” fails to convey the essence of Robert’s reluctance to ultimately concede to the waiver. (CT 18-21; RPT 52-64.) Whatis clear, however, is that as early as 1995, seven years prior to the 2002 trial, Robert repeatedly demanded timely proceedings. On January 18, 1996, both Robert and Walker were arraigned, and counsel for both men . sought to continue thetrial date beyond sixty days. Robert refused. (CT 146-48; RPT 69-88.) Walker’s counsel also moved to sever their cases, and in arguing the motion, Walker’s counsel’s comments foreshadowed Robert’s efforts to bring his caseto trial: “We cannot be ready within 60 days, and if Mr. Williamsforces us to be goingto trial within 60 days, I think myclient would be severely prejudiced....” (CT 147; RPT 85.) Even though the continuance motion was denied, Robert’s desire for a timely trial was certainly clear to the court, to defense counsel for both Robert and Walker, and to the prosecutor. Two weekslater, Walker’s counsel continued his argument to sever the cases: “You have one [Robert] of which does not wish to waive time and one of which does wish to waive time, is unprepared.” (RT 107.) The severance motion was continued; and even though the continuance motion was denied, Robert’s resistance, evenat this early date, underscores his ongoing efforts to oppose delays and get his case before a jury as expeditiously as possible. (CT 185; RPT 104-30.) On March 1, 1996, Robert’s counsel again requested to continue the trial date. Robert again refused. (CT 201-02; RPT 131-39.) During the ensuing Marsden hearing, Robert expressed to the trial judge his ongoing frustration over the denial of his right to a timely trial: “You always deny [my opposition to further continuance] anyway. What’s the purpose of making another Marsden?” The judge asked,“I take it you want to continue to objectto a trial date beyond the March 11 date, is that correct?” Robert replied, “Yes.” The court continued the trial another sixty days to May 6, 1996. (CT 201-02; RPT 131-39.) This markedthefirst continuanceofthe trial over Robert’s objection. The second continuance over Robert’s objection occurred on May3, 1996, as counsel for Robert and Walker once again movedto continue the trial date. Robert’s reaction and position on the matter was unequivocal: “I’m not waiving no more time,” to which the court responded, “And I do this, that is grant the 1050 motion [continuance] reluctantly because I know [Robert] wants a speedytrial.” (CT 258; RPT 143-73.) This continuance was to span a further five months, extending until October 1996. The next three and one-half month continuance motion took place on September 27, 1996. While Respondentis certainly correct in stating that Robert “waived time,” this assertion yet again, belies the underlying circumstances of the waiver. During the hearing, Robert inquired of the court, “Okay. I’d just like to know that after the continuance, the January 27, ten days after that, after that is you going to continue this again, or is this it? ... You understand what I’m saying? But we might be ready. We mightnot be ready.” (CT 320-36; RPT 346-66.) The court then explained the possibility of yet further continuances, to which Robert replied, “So if it does happen to be another continuance, it would be a short continuance?” It was with that understanding that Robert said, “I’ll go ahead and waive time. It won’t make any difference, but I’ll go ahead and waivetime.” (CT 320-36; RPT 346-66.) Given these circumstances, while it is accurate to state that Robert consented to the waiver, it is, once more, a mischaracterization on Respondent’s part to suggest that Robert’s acquiescence represents willing consent. The next three-month continuance to April 28, 1997, was the third continuance of the trial date over Robert’s objection. On that date, defense counsel again movedto continue, and Robert once more voiced what he suspected would be a futile objection: “[I]t don’t really make a difference if I agree or not ... I mean, it don’t help me noneto sit here and say no. I don’t waive my time, because this thing’s going to be continued....” (CT 357-67; RPT 381-90.) Curiously, Respondent characterized Robert’s opposition to the trial continuance as assent. (RB 27.) Robert could not have been more adamantin refusing to waive time. (CT 357-67; RPT 381-90.) In somerespects, the fourth continuance to which Robert objected, ultimately leading to a seven-month delay, was the mostnotable. Respondent, understandably in an attempt to once again cast blame on Robert for pushing backthe trial from July 20, 2001, to March 4, 2002, failed to acknowledge the precipitating circumstances for the continuance; specifically, the three- month absence of Ruiz during which, in the wordsofthe trial judge, the case had been rendered “ dead in the water.” (CT 1183-91; RPT 1178-93.) Remarkably, it was Prosecutor Ruiz, whose illness-related absence brought discovery to a standstill, who now alleged that it was Robert who was engagingin “delay tactics,” and, further, it was Prosecutor Ruiz who then successfully urged the judge to terminate Robert’s Faretta status. (CT 1354; RPT 1335-51.) Respondentis quick to discuss other circumstances surrounding the events that transpired during that period (see RB 33- 38), while conveniently ignoring the absence of discovery turned over to defense counsel during Mr. Ruiz’s three-month absence, spanning from October, 2000 through January, 2001, a period of time during which discovery “cameto a standstill.” (See AOB 68.) Furthermore, Respondent ignores Prosecutor Ruiz’s blatant and ongoing discovery obstructions that were instrumental in leading to the court’s decision to continue the case to March 4, 2002. (See AOB 41-45.) While Respondentis correct that there were nineteen continuancesofthetrial date, he is incorrect to suggest that Robert consented to seventeen of those continuances (see RB 22, 42- 43). The record reflects that in addition to Robert’s objections to the four continuances of the trail date, he also objected to two continuancesof the preliminary hearing. Those six objections to continuances comprised a nineteen-month delay. b. Continuances Caused by Prosecutor’s Discovery Obstructions Recognizing Respondent’s mischaracterization of the number of times Robert objected to the nineteen continuances,it is critical to clarify the reasonsforthe fifteen additional continuancesof the trial date that accounted for approximately sixty-four months of delay. As this Court is well aware, a critical inquiry in assessing a speedytrial claim is identifying which party is predominantly responsible for the delay. (Doggett, 505 U.S. at 654; Barker, 404 U.S. at 531.) Respondentasserts that Robert brought a number ofMarsden motions, and accordingly, accuses Robert ofpitting his speedytrial rights against his right to counsel. (RB 43.) Apart from the implication that all Marsden hearings lack merit and are undertaken by an accused for the sole purpose of creating delay, it is not surprising, given the torturous eighty-three-month journeyto a capital trial, that various conflicts with counsel materialized. Respondent, while attempting to place such commonplace occurrencesat the forefront of the “blame”issue relating to delay, has simultaneously failed to address the primary culprit for this prejudicial delay, namely, that it was caused by Prosecutor Ruiz’s trench warfare approach to discovery. And, indeed, eight of the continuances that Robert and his counsel were forced to seek, were the direct result of Mr. Ruiz’s failures to provide this capital defendant discovery to which he wasentitled. Thefirst continuanceofthe trial date due to Mr. Ruiz’s discovery failures occurred in late March, 1997. Specifically, the prosecutor failed to provide witness contact information, and refused defense counsel access to the substance ofjailhouse conversations between Mr. Walker and his girlfriend. (CT 837; RPT 472-93.) As a result of the prosecutor’s lack of cooperation in providing discovery, Robert’s counsel! sought and received a continuance, movingthetrial date from April 28, 1997, to July 28, 1997, resulting in a three-month delay. (CT 794, 819-37; RPT 419-55, 472-93.) It is significant to note that this trial delay came about sole/y as a result of the State’s ongoing discovery failures, a practice that was unfortunately to continue, soon leading to the postponementofthis latest reschedulingoftrial. This second continuance ofthe trial date was also due only to Mr. Ruiz’s discovery gamesmanship, and led to a further two and one-half month continuance from July 28, 1997, to October 10, 1997. (CT 914-17; RPT 573-605.) This delay was occasioned by Mr. Ruiz’s continued resistance in providing witness contact information in the form of the aforementioned Walker-girlfriend jailhouse tapes, and a numberof itemslisted in a defense memorandum.(See AOBfn 69; CT 894-95, 911-17; RPT 505-71.) Once again, this discovery-related delay was caused only by the State, and was separate from any otherissues. The third continuanceofthe trial date, while not solely resulting from Mr. Ruiz’s discoveryfailures, muststill, at least in part, be attributed to his deliberate delay tactics in producing discovery. On September 5, 1997, Walker’s counsel conflicted from the case and newly appointed counsel informed the court that he would need six to twelve monthsto prepare for trial. (CT 1005; RT 730-47.) However, apart from Walker’s change of counsel, Robert’s counsel, again citing Mr. Ruiz’s calculated discovery obstructions, moved to continuethe trial date. The court, noting that discovery had “not been smooth,” continued thetrial to a “firm” date eight months hence on August 3, 1998. (CT 1005; RPT 730-47.) To be perfectly clear, however, this lengthy continuance wasprimarily related to prosecutorial discovery delays, and to some degree the trial judge’s failure to sever Robert’s case from Walker’s. Given the multiple factors contributing to this delay and relating directly to the State’s shortcomings, this delay should not be put at the feet of the accused. The next significant delay, precipitated by Mr. Ruiz’s discovery obstructions, caused the trial date of February 2, 2001, to be continued another two months, now movingthetrial to April 3, 2001. As late as January 12, 2001, just three weekspriorto thetrial date, the court admonished Mr. Ruiz for his latest response to Robert’s discovery requests: “Don’t wait until we comebackinto court to get [discovery] to him. Just send [discovery] out to him....” The court’s acknowledgment that Mr. Ruiz’s failures left Robert no choice but to request the two-month continuanceis, of course, significant. (CT 1183-91; RPT 1178-93.) It is significant becausethis was now thefourth continuancedirectly attributable to the prosecutor’s failure to comply with discovery. Only weekslater, in an attempt once more to expedite discovery, the court attempted to shift discovery responsibility from Mr. Ruiz to his investigator. (RPT 1335-51.) Regrettably, that effort fared no better than previous efforts, and as of February 23, 2001, Robert sti// had not received the requested materials that Mr. Ruiz had previously conceded were discoverable. (CT 1208-12; RT 1213-19.) Consequently, three weeks later, on March 16, 2001, Robert, frustrated by the prosecutor’s failure to provide discovery, moved to disqualify Prosecutor Ruiz,citing discovery obstruction. As a result, Robert was forced, yet again, to request a continuanceofhis trial date. (CT 1234-40; RPT 1228-52.) This latest two-month continuance, to June 4, 2001, marked the fifth continuance where the blame again rested squarely on the prosecutor’s shoulders. (CT 1234-40; RPT 1228-52.) Remarkably, Respondenthas instead attempted to characterize this delay as evidence of dilatory conduct by Robert. (RB 43-44.) Thereality, however, is that Robert’s efforts to disqualify Mr. Ruiz were the direct result of Mr. Ruiz failing to provide court-ordered discovery and, as such, these efforts were nothing less than reasonable 10 given the State’s repeated failures to abide by timely discovery deadlines. (CT 1234-40; RPT 1228-52.) On April 17, 2001, six weeks priorto the June trial date, Prosecutor Ruiz turned over seven boxes of discovery, only to have Robert’s standby counsel determine that “some things were missing.” (CT 1258; RT 1299-1311.) While Mr. Ruiz promised to produce those missing items, standby counsel, citing the missing discovery, was forced once moreto request to delay the trial another seven weeks, to July 2001. (CT 1336; RPT 1312-27.) This wasthe sixth discovery- related delay; and, again, this delay was apart from any other issues. Discovery delays continued to plague this case when, on January 23, 2002, Robert’s counsel again found it necessary to move for a seventh discovery-related continuance due to non- receipt of discovery materials that Mr. Ruiz acknowledged were “appropriate.” (CT 2162; RPT 1382-84.) This five-week continuance moved the newtrial date to April 8, 2002. On March 29, 2002, the trial was pushed back another two months, this time due to discovery issues regarding third-party liability. (CT 2185-87; RPT 1400-25.) The third-party liability issue spilled over to April 23, 2002, when defense counsel apprised the court that, “[Y]et again on Wednesdayof last week I’m still receiving additional reports, significant reports that should have been turned over seven years ago but were not....” (RPT 1426-44.) As a result, the court granted defense counsel the eighth and final continuance caused by Mr. Ruiz’s discovery obstructions. (CT 2249-65; RPT 1475-1504.) As suggested in Appellant’s Opening Brief, it is not possible to ascertain with absolute clarity how muchtime waslost or how to apportion blame due to the discovery-related delays caused by the State; however, it is Appellant’s good faith estimate that twenty-two and one-half monthsare directly attributed solely to prosecutorial discovery obstructions. 11 c. Continuances Caused by the Court’s Failure to Sever While Respondent wasgenerally dismissive in his discussion of the delays associated with Mr. Ruiz’s obstruction of discovery, he completely ignored the significant delays caused by the court’s failure to sever Walker’s prosecution from Robert’s. The conflicts over time waivers first surfaced in November, 1995,’ and continueduntil the court acknowledged, somefour years later, that these two capital cases could not be tried together: “I wish we would have thought of this a couple of years ago....” (CT 1146; RPT 1042-50.) Of course, defense counsel for both Robert and Walker had identified this concern several years previously, but their motionsfell on the deaf ears of the judge.” The court’s belated acknowledgementof the necessity for severance cannot be viewed in a vacuum.It was apparentas early as the preliminary hearing continuances that while Walker agreed repeatedly to waive time, Robert, in stark contrast and from the earliest monthsofpretrial, was adamantthat his case be tried as quickly as possible.? This problem was, perhaps, most pointedly illustrated when Walker’s counsel conflicted from the case on September 18, 1997, and Walker’s new counsel announcedthat he estimated that he could be readyfortrial “probably closer to 12 [months] than six.” (CT 1005; RPT 730-47.) The court then continuedthe joint trial for ten months from October 10, 1997, to August 3, 1998. (CT ' On November 9", 1995, co-defendant Walker’s counsel received a twenty-day continuance due to his participation in anothertrial. (RPT 32.) While Robert’s counsel opposed this motion (CT 15; RPT 31-36), the continuance was granted, setting the preliminary hearing to December 14", 1995. (RPT 37-45.) Robert opposedthis continuance, and his defense counsel voiced this opposition to the court: “Mr. Williams prefers to have the prelim. as set.” (CT15; RPT 31-36.) * Despite initial efforts on January 18, 1996 by Walker’s counselto severhis client’s trial (CT 147; RPT 85), and despite Robert’s counsel’s motion to sever the two cases on February 23, 1996,the court denied both requests. (CT 185; RPT 104-30.) Even as late as January 1999, the court continued to find “... good cause to keep the two of them {Robert and Walker’s cases] together.” (CT 1108-15; RPT 913-35.) > On November 9, 1995 Walker’s counsel] obtained a twenty-one day continuancedueto his obligation to another trial. (RPT 32.) However, Robert opposed the continuance. (CT 15; RPT 31-36.) On November 29", 1995, the court granted Walker’s counsel the continuance and Robert’s counsel withdrew his opposition. (CT 16-17; RPT 37- 45.) When Walker’s counsel again requested a further continuance, Robert’s attorney once more voiced Robert’s opposition, but to no avail. The preliminary hearing was rescheduled to December 21, 1995. (CT 18; RPT 37-45.) 12 1005; RPT 730-47.) Despite the delays associated with the State having kept the cases consolidated, it was not until two yearslater that the court severed the cases. (CT 1146; RPT 1042-50.) Just as it is difficult to offer a precise calculation as to the time lost due to the prosecutor’s willful discovery obstructions, it is also difficult to offer an accurate estimate of the time lost because of the failure to sever Walker and Robert’s case. The change of appointed counsel for both defendants, the differing timetables attributable to Walker’s and Robert’s counsel’s representation of their client’s respective guilt and penalty phases, coupled with the complexities of witness coordination, offer but a sample of the variables that must be regarded when gaugingthe total timelost in reaching trial. However, what can be stated with near certainty is that had the severance of the two defendant’s cases occurred in 1996, Robert’s trial would have commencedyears earlier. This delay of Robert’s right to a speedy trial does not weigh against the defense and was undeniably a significant factor in delaying Robert’s trial. d. Systemic Flaws in the Appointment of Alternate Defense Counsel Delayed Robert’s Trial Twenty-Six Months At the heart of Respondent’s argument addressing the delays caused by the revolving door of defense counsel is Respondent’s contention that Robert sought to replace each of the attorneys appointed to represent him as a delaying tactic. This comment merits three responses: First, it is inaccurate; second, as suggested earlier, requesting a Marsden hearing and attempting to better defend against criminal charges, let alone capital charges, should not be used to castigate an accused; and,finally, Respondent’s assertion fails to respond to the allegation regarding the systemic breakdownofthe alternate defense counsel system. [RB 43-44] The sorrowful record of ever-changing defense counsel for this capital defendant belies Respondent’s assertion that somehow Robert wasresponsible for the myriad of lawyers thrust upon him. To be 13 clear, only one of Robert’s Marsden requests for new counsel was successful. (CT 1140-41; RPT 1022-23.) The conflict of the Public Defender following the first two years and nine months of representation appeared to have been clearly related to a discovery delay by the prosecutor." (CT 1098; RPT 879-97.) Following the Public Defender’s departure, Riverside County’s Criminal Defense Panel (CDP) would be the sole mechanism for providing counsel for Robert. To further rebut Respondent’s assertion that fault lay with Robert when it came to the revolving door of defense counsel, we have only to heed Prosecutor Ruiz’s commentary on the CDP made twoyears into the seven-yearpretrial. Following the short-lived representation by several CDP lawyers, Mr. Ruiz found himself frustrated over the continuances necessitated by the preparation time required by each new CDP counsel: “And a year continuance on a caselike this so CDP can keep it in house, I don’t believe is appropriate ... that would be an abortion of yustice....”” (CT 1005; RPT 730-47.) In December 1997, Mr. Ruiz took it upon himself to attempt to recruit a non-CDP lawyer who could expeditiously get the case to trial.° The reprehensible history of CDP’s chronic failure to appoint counsel who could and would provide adequate representation for this capital defendantis set forth in Appellant’s Opening Brief. (AOB 62-66.) “ Before both Feiger and the Public Defender conflicted from the case, PD Supervisor Zagorsky acknowledgedthe relationship between Prosecutor Ruiz’s unwillingness to timely comply with discovery requests and this ultimate conflict of counsel. Notably, Zagorsky stated that had Ruiz been forthcoming with discovery, this conflict could have been avoided. Thislatest turn of events also necessitated assignment of the Criminal Defense Panel to monitor the future representation of Robert in an attempt to avoid any repeat of this problem. (AOB 56-57.) ° Prosecutor Ruiz incited the objection of Walker’s counsel, Mr. Peasley, whereby Peasley accused Ruiz of interfering with choice of defense counsel. (CT 1035-43; RPT 765-79). Ruiz had contacted a judge not presiding over the instant matter in an effort to find out about the availability of alternate defense counsel, counsel Ruiz felt might prepare the case for trial more expeditiously than Peasley had managed. (RPT 774.) 14 e. Robert’s Assertion of His Right to a Speedy Trial Despite Robert’s ongoing assertion of his constitutionally guaranteed right to a speedy trial and adamant opposition to no fewer than nine efforts to delay, Respondent arguesthat Robert’s claim fails because he did not file a formal motion to dismiss. (RB 50-51.) Respondent is mistaken. The goal of the waiver principle isto ensure that issues are dealt with as they arise in order for them to be resolvedat the trial level. (People v. Saunders (1993) 5 Cal. 4" 580, 589; People v. Vera (1997) 15 Cal. 4" 269, 275.) It is sound policy to resolve disputesatthetrial level rather than at the appellate level. (People v. Carpenter (1997) 15 Cal. 4™ 312,351) Conversely, it is contrary to sound policy to defer issues with an eye to resolution at the appellate level. Robert’s timely and ongoing objections to continuances were madeat a time whenthetrial court had the ability to resolve the issue. The trial court, following Robert’s six objections to continuances, was clearly aware of the speedy-trial issue raised and had the authority and obligation to recognize Robert’s claim. Respondent’s assertion that Robert’s failure to bring a formal motion to dismiss in light of the undisputed assertion of that right is nothing less than quintessential form over substance. It is undisputed that neither Robert nor any of his court-appointed lawyers filed a formal motion to dismiss; however, it is also beyond dispute that throughoutthe history ofthis case, Robert continuously asserted his right to a speedytrial. Further, requiring a defendantto assert this right and move for dismissal in order to preserve his Sixth Amendmentright is inconsistent with the Court’s concept of waiver of constitutional rights. (Barker, 407 U.S. at 525.) Additionally, the Court has asserted that a reviewing courtshould “indulge every reasonable presumption against waiver.” (/d. (quoting Aetna Ins. Co. v. Kennedy (1937) 301 U.S. 389, 15 393).) Given the chaotic nature of the misguided appointments of the various CDP lawyers,it is not surprising that a formal motion to dismiss for lack of a speedy trial was not lodged. As set forth above, simply finding a lawyer who could and would remain as counsel was problematic enough and, correspondingly, Respondent’s assertion that formality should triumph overa basic constitutional guarantee is misguidedat best. f. The Denial of a Speedy Trial Prejudiced Robert’s Defense Respondent has opted to skirt past an essential teaching from Barker, namely, that in the event the other Barker factors are compelling, a specific showing of prejudiceis not essential to finding a denial of speedy trial. Given the extraordinary eighty-three-month delay, the twenty- eight-and-a-half-month delay caused by the prosecutor’s discovery gamesmanship,the delay caused bythe trial court’s failure to sever Walker’s and Robert’s case, and Robert’s repeated demandsfor a timely trial, it is undeniable that the Barker factors in this case are compelling. (Barker, 407 U.S, at 522.) The Barker Court recognized that determining actual prejudice in the context of a lengthy pretrial cannot be measured with anycertitude. (/d. at 521-22.) Indeed, citing to line and verse, specific violations proved to have been caused by lengthy delays are difficult to demonstrate, and are often based upon speculation and conjecture. And while recognizing that some of the specific difficulties arising from the eighty-three-month delay will, perhaps, never cometo light, at least two instances of prejudice did surface. First, any meaningful investigation into the third parties motivated to kill Gary Williams was compromised. Had Robert’s trial occurred in 1997 or 1998, instead of 2002, and, accordingly, had discovery been completed priorto trial, the identity and whereabouts of those third parties would much more likely have been ascertained. By stretching pretrial discovery into 2001 and 2002,the task of investigating such third parties was rendered more problematic with 16 each passing month, let alone with each passing year. Respondentasserts that “the delay benefited Williams by allowing him time to identify and seek out” the third parties. (RB 48.) Such an assertion assumesa static universe, where people and circumstances forever remain in the sameplace. Reality, of course, is such that with the passage of time stretching from months to years, the meaningful investigation of people and events becomesincreasingly difficult. Respondentasserts a time-honored prosecutorial adage, that “delay is not an uncommondefense tactic.” (RB 47 citing Barker.) In truth, however, this one-size-fits-all assertion does notfit every circumstance—especially the circumstancesarising in this case. Here, a delayedtrial followed in the wake of delayed discovery, and in turn, this likely compromised any legitimate opportunity to identify those individuals with an interest in killing Gary Williams. These were individuals who had to be sought out, given that they would not come forward of their own volition when identifying themselves might well have led to their prosecution. Therefore, these were individuals who werelikely to distance themselves from any investigation, given the opportunity. While it cannot be stated unequivocally that Robert would have been advantaged had he been apprised early on of the existence of those interested in killing Gary Williams,it cannot be denied that this information might have benefitted Robert. The second specific prejudice to the defense was the evolution of Conya Lofton’s testimony. In the weeks and months following the murders, Lofton offered varying accounts not only of her recollection of events leading to Robert’s prosecution, but also in relation to her identifications of the defendants. However, whenshefinally testified seven years later, her testimony belied that initial uncertainty; instead, she testified with unfailing certitude. Lofton, the . prosecution’s sole percipient witness, underwent a striking metamorphosis during the seven-year delay. It was her revised testimony that propelled the State’s case. 17 For a witness in a capitaltrial, indeed the so/e percipient witness in this instance, to modify original recollections that were provided at a time when the events were fresh in her mind (and presumptively at their most reliable), suggests improper witness-coaching. Seven years was an unusually lengthy period of timeto arriveat trial, and during those years Ms. Lofton wasable to insure hertestimonyat trial would be truly “accurate,” reflecting that which a well-prepared witness might provide. There was, of course, the assumptionthat as a well- prepared witness, Ms. Lofton would assist in the truth-seeking process of Robert’s trial by testifying to what she recalled, not what, so many years later, she now claimed to be her most accurate recounting yet of the events of July 15, 1995. Asbrought out in Appellant’s Opening Brief, the Barker court enumerated “the interests of defendants which the speedytrial right was designed to protect.” (AOB 69-73) Suchinterests include,in relation to the issue of Ms. Lofton’s ever-changing witness accounts, the need to minimize “the possibility that the defense will be impaired” by issues of witness unreliability. (Barker v. Wingo (1972) 407 U.S. 514, 532.) The following summary lays out various aspects of Ms. Lofton’s unstable testimony At the preliminary hearing andat trial, Ms. Lofton identified two blue vehicles at the house on the night of July 15, 1995: a 1989 Cavalier and a friend’s El Camino. At the preliminary hearing, Ms. Lofton stated that the only other vehicle she observed that night was a burgundy sedan outside Gary Williams’s house. (AOB 20). Mr. Williams’ neighbor, Michelle Contreras,testified thatfour cars left the home that evening, and she wasable to describe them in detail: the Cavalier and the E] Camino,as well as a light colored car and a lowered Chevrolet truck. (AOB 25.) 18 Ms. Lofton testified at the preliminary hearing andat trial that three men exited a burgundy vehicle and crossed the street to Gary Williams’ house (CT 129), yet two daysafter the murders in a taped interview, Ms. Lofton testified that only two men exited the car and approached the house. (RT 2391-92.) Neighbor Contreras provided testimony at trial that neither of Ms. Lofton’s accounts wascorrect, and thatfour men andfour vehicles were present at the scene that night. (RT 2319-20.) In termsof her ability to identify Robert with any precision, Ms. Lofton’s recollections vary from being no more particular than finding him to be a heavy-set individual carrying a brief case (RT 2086-89.), to being shorter than 5’ 8” (CT 99, 131.), to assessing that she was the same height as Suspect #1 (CT 132.), to the suspect being precisely 5’7” and 170 poundsatthe time. (RT 2469-73.) In relation to her claims of rape, Ms. Lofton claimsthat she was anally penetrated, later deciding that she was vaginally penetrated. At the preliminary hearing she stated that Robert removed a glove that he was wearing after inserting a finger into her vagina;at trial, however, she claimed that he removed the glove prior to her assertion ofthe digital penetration. (RT 2169- 71.) At one stage in her various accounts, Ms. Lofton maintained that the victims shot in the back of the head. (RT 3075.) At another juncture, she testified that Suspect #3 (as referred to during the trial) was the person who opened the vacuum cleaner bag looking for money (RT 2381.); at the preliminary hearing she claimed it was Walker who opened the bag; at Walker’s trial it became Robert who opened the bag. (RT 2380-90.) A monthafter her initial identification of the suspects, Ms. Lofton, now in Mississippi, identified Robert as Suspect #1, by way of police photographic identification. (RT 2362-64.) At 19 the same lineup, Ms. Lofton insisted that Suspect #3 was Shawn Ford, a man who was incarcerated at the time of the killings. (RT 2362-64.) Further, in terms of her certain identification of Robert, at the preliminary hearing Ms. Lofton said she was underthe influence of medications administered at the hospital the night of July 15, 1995, when she gave a statement to the police; at that time, she admitted she could not be certain about her account. (CT 108-09, 93.) At trial, she stated that these same drugs did not render any effect upon herability to clearly recall the events of that night. (RT 2372.) At the preliminary hearing, Ms. Lofton stated that she could not rememberdetails of that first police interview conducted at the hospital and yet attrial she wasable to provide an acute recollection of everything surrounding that questioning session. (RT 1935-40.) Ms. Lofton initially told investigators that three men were arguing over who would take Gary’s shoes on the night of the killings and who the shoes mightfit, but at the preliminary hearing andat trial she stated that the only person who wasinterested in the shoes was Suspect #3. (RT 104-05, 2122.) Surely it is not necessary to emphasize further how significantly Ms. Lofton’s remarkable malleability might have influenced the outcomeofthis capital case. Had jurors heard all of Ms. Lofton’s various “certain” versions of events, Respondent could not state with any certainty at all that the jury might not have undertaken a rather different process of deliberation, one possibly rendering a different outcome for Robert. While Respondent highlights Ms. Lofton’s testimony that she was “positive that Williams ordered his cohorts to kill Gary and Roscoe before slashing her throat,” and that in stating the samesheis “being 100% positive [and has] no doubt in her mind,” Robert would contend that, despite the above summary, Conya Lofton has shown,time and time again, that she wasfull of doubt. Respondent further asserts that somehow the longtrial delays in fact bolstered Robert’s 20 ability to more completely craft a trial strategy in orderto alert the jury to Ms. Lofton’s wavering on just about every significant issue relating to the night of the murders. (RT 39.) This is an odd claim, to say the least, considering that the prosecution successfully kept Ms. Loftonat all times well beyond defense counsel’s reach, prohibiting development of a complete defense. In part, the prosecution insisted that Ms. Lofton must be kept hiddenasa result of the alleged death threats she had received, but let us not forget that this fear was fueled in part as a result of the fact that “one of the three cohorts [was] at large,” the very cohort that Ms. Lofton had identified as someone whowasincarcerated at the time of the murders. Hence, Respondent’s assertion that delaying the case might have “served to advance Williams’ chances the prosecution might be adversely impacted by the passage oftime” is illogical. The remarkably lengthy passage of time between the night of the murders and Robert’s eventualtrial did nothing to assist Robert’s counsel in preparing a complete defense, and did everything to promote the prosecution’s use of Ms. Lofton’s evolved and “precise” testimony that rested in such sharp contrast with the many and variousversionsthat predatedthis capitaltrial. ARGUMENTII THE STATE’S FAILURE TO INVESTIGATE AND PROVIDE TIMELY DISCOVERY OF THIRD-PARTY CULPABILITY VIOLATED BRADY STANDARDSIN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT It is the Respondent’s position that it was not error for the State to refuse to turn over information knownto, and possessed by, the prosecutor about specific dangerous criminals with specific motive to kill the decedent. (RB 51-52.) Respondent characterizes the third-party culpability information as speculative and hence not worthy of disclosure. (RB 56.) Respondent reasons that Appellant is suggesting as 21 improbable the notion “that because Gary was a bank robber, he must have had enemies, then those enemies must necessarily have wanted to kill him.” (RB 56.) It is, however, beyond speculation that Alan Hunter and Chris Moreno, members of the Palm Oaks Crips, were arrested during robberies planned by Gary, while Gary watched from afar and got away. (RT 2395-2410, 2556-68, 2574-2603.) It is beyond speculation that these two Crips wanted to kill or rob Gary at the time of Gary’s murder. (RPT 1463-64.) It is beyond speculation that the prosecutor had in his possession documentation that Gary had gang associations with, among others, the Mexican Mafia. (RPT 2410, 2760, 1462-64.) It is beyond speculation that there wasat least one jealous boyfriend of Conya Lofton who threatened Gary just prior to Gary’s murder. (RPT 2442-62.) Had Prosecutor Ruiz not withheld documentation of these matters until the eve oftrial, developing a viable third-party culpability defense would not have been speculative in nature. Indeed, it is Appellant’s contention that it was Mr. Ruiz’s carefully timed revelation of this information that was alone responsible for the defense’s inability to determine the import of this information. In addressing the State’s obligation to provide exculpatory evidence, are we then to ignore the Supreme Court’s teachings that the State has an affirmative obligation to expose evidence favoring the defense, especially if that evidence has the potential of exculpating the defendant (Brady v. Maryland (1963) 373 U.S. 83, 90.) It seems as though Respondent encourages such practice. Appellant strongly opposes Respondent’s efforts to dismiss as purely speculative such compelling evidenceas the established relationship between Gary, Hunter, and Moreno. Further, Appellant does not concedethat it is nothing more than conjecture that Gary’s past, evidencing association with known gang members, is something that would not have begged for further scrutiny by Robert’s counsel in preparing his defense. Respondent, however, speculates, suggesting that nothing in these undisclosed reports could have assisted Robert’s 22 case. Respondent decided that identifying particular individuals with specific motivesto kill Gary at or about the time of Gary’s murder would be ofno assistance to the defense. (RB 51-59.) Further, even if the evidenceofthird-party culpability were not found to be wholly exculpatory, suppression of such information wasstill material to Robert’s ability to present a complete defense. (Cone v. Bell (2009) 129 S.Ct. 1769, 1773.) Respondentis in the unenviable position of continuing to have to defend the extensive history of Prosecutor Ruiz’s shameful record of discovery obstruction and delays. For many years, Mr. Ruiz hadin his possession the bulk of the information set forth above, and yet Robert had to rely upon pure happenstance that defense counsel would inadvertently come upon documents detailing significant third-party culpability in Mr. Ruiz’s files.° Just months prior to the eventual trial date, the particulars identifying third parties with a motive to kill Gary were finally turned overto the defense. (RT 1431-33.) The timing of the turnover was problematic in two ways: First, seven years had elapsed since Gary’s murder, and such an extensive time lapse would makeefforts to locate those individuals who wanted Gary deadatleast difficult; second, the late disclosure of information relating to third parties, taking place immediately priorto trial, precludedentirely the opportunity for defense counsel to engage in a meaningful investigation of Gary’s identified co-conspirators. Further, this delay prohibited defense counsel’s integration into Robert’s defense of any potentially important information relating to third-party culpability that might have been foundto exist. Respondent attempts to defend Prosecutor Ruiz’s conduct by focusing attention on a prosecutor’s duty, or lack thereof, to obtain exculpatory information from other government ° It was on April 23, 2002, that Attorney Cormicle, in the throes of reviewing prosecution materials, quite by chance came upon an FBI report, four pages in length related to Robert Scott and Gary’s collaboration in a number of robberies. 23 agents on behalf of the defense. (RB 51-54.) However, the duty to obtain information is fundamentally different from a duty to disclose information the prosecutor already knowsto exist or already possesses. From Mr. Cormicle’s ex parte statements on April 25, 2002, the court was made aware of Mr. Ruiz’s knowledge and possession of documents specifically relating to Brady material.’ While Respondentasserts that Robert cannot show that Prosecutor Ruiz’s discovery failure denied him production of possibly material and favorable evidenceto a third- party culpability defense, Robert’s inability to demonstrate such evidence,if it did indeed exist, wastheresult only of Prosecutor Ruiz’s hand in what had now becomehis trademark gamesmanshipin relation to producing or retaining discovery materials. Respondent declares that Prosecutor Ruiz was never “required to go on a fishing expedition for purposes of attempting to ascertain if Gary had enemies who may have wishedto kill him.” (RB 52.) However, Appellant asserts that turning over information the State already hadin its possession hardly invoked any degree of exploratory or investigative exertion on Prosecutor Ruiz’s part. Mr. Ruiz’s failure to turn over Brady material in a timely manner denied Robert the opportunity to adequately investigate the information and mounta viable third-party defense. Consequently, Appellant contends that Prosecutor Ruiz’s conduct unquestionably compromised Robert’s due processright to receive a fair trial guaranteed to him by the Fourteenth Amendment. 7 See AOB 75 n.113 (“In an ex parte hearing on April 25, 2002, Mr. Cormicle explained his need for more time to investigate, and howlate discoveries regarding Gary’s robberies and associates had been brought about by Mr. Ruiz’s failure to turn over vital evidence.” (RPT 1459-75.) Cormicle explained that during a meeting with Ruiz on January 9, 2002, he had comeacross a one-page documententitled “Gary and 100 bandits,” which outlined the sixteen bank robberies Gary was believed to have orchestrated with the assistance of numerousassociates. (RPT 1460.) Cormicle went on to say, “Now,I had not received any discovery pertaining to that, nor had Mr. Williams whenhe represented himself, who had asked for the documents because this is a statement that had come up during [Ruiz’s] opening statementin the Walkertrial.” (RPT 1460.) The discovery ofthis document prompted Cormicle to ask Ruiz about any other documents related to these robberies in his possession, which led to Ruiz belatedly reveal]the existence of the FBI documentsto the defense. (RPT 1461.)”). 24 ARGUMENTIII THE STATE’S FAILURE TO PROVIDE DISCOVERYOF MS. LOFTON’S WHEREABOUTS VIOLATED BRADYSTANDARDS AND HENCE THE DUE- PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT The defense’s ability to challenge Ms. Lofton’s veracity and the credibility of her testimony wasa primary issue at Robert’s trial. If Lofton’s testimony were believed, then Robert would be convicted; if she were deemed incredible, Robert would be acquitted. Respondent’s defense of the court’s denial of access to Ms. Lofton offers three arguments while simultaneously failing to address the statutorily prescribed remedy for precisely the circumstancespresentin this case, specifically, that, pursuant to §1054.2, the requested information would be turned over only to defense counsel, who, as an officer of the court, would be obligated not to disclose the information to Robert. In addressing Respondent’s arguments, Appellant submits that Respondent, without necessarily misrepresenting the circumstances, nevertheless implied that any alleged threats against Conya Lofton weredirectly attributable to Robert. Respondent states on page 63 of his brief that “[iJn his sworn statement, Pradia providedthat ‘three men had unsuccessfully attempted to kill ConyaL.byslitting her throat.’” Indeed, at the preliminary hearing andattrial, Ms.Lofton so testified, subsequently identifying Robert as one of the three men. [cite] However, as crafted in Respondent’s brief, the language invokesat the very least the suggestion that at some point, but well after the murders, three men, including Robert, in fact attempted but failed to kill Lofton. This is misleading in that it implies that after the day of the murders Robert sought out and attempted to kill Ms. Lofton. On page 64 of Respondent’s brief, Respondent wrote that Ms. Lofton, while addressing the court priorto trial, “indicated ‘all the time’ Williams sent her stressful messages and that she was routinely warned that Williams waseager to ascertain her 25 current address.” Once again, as presented in Respondent’s brief, this statement appears to suggest that Robert directly threatened Ms. Lofton. In fact, however, nothing could be more inaccurate. In order to accurately quote Conya Lofton and fairly contextualize her direct knowledge of any death threats, one only needs to consider the following statement: “People tell meall the time that the defendant has asked about my whereabouts. He inquires about my whereabouts. And he sends messages through other people to give to me.” (RPT 1478.) Even to the extent that Ms. Lofton can be believed, this statement is a far cry from Respondent’s implication that Robert at any time directly threatened her. Thereality is, of course, that just as there were no death threats attributable to Robert, there was no direct communication between Robert and Ms. Lofton from which any reasonable claim that Robert threatened Ms. Lofton’s life could arise. Apart from Ms. Lofton’s above-referenced statement, the only evidence that she received death threats was in Detective Pradia’s declaration where he contendedthat he ““believ[ed] the death threats to be very real....” (4 CT 909.) However, Detective Pradia makes no mention of how these threats were delivered, nor at any time does he indicate who delivered them. The alleged threats, in sum, were to be viewed as analogous to backroom grumbling, and, as a result, should carry no weight. Respondent’s second argument in defense of the court’s decision to bar access to Ms. Lofton is that had the court given defense counsel access to Ms. Lofton, then “it was unlikely that the defense could have gathered much ‘reputation in the community’ evidence even if provided that address,” which it could have used to impeach Lofton. (RB 65.) Prosecutor Ruiz unequivocally concedesthat one of the duties of the defense is to impeach the witness. (RPT 622.) Mr. Ruiz further acknowledged that a standard procedure by which to impeach a witness is by talking to members of the community where the witnesslives in an effort to ascertain his or 26 her reputation within that very community. Such a procedurets a tried-and-tested manner by which to uncover whetheror not a witnessis inclined towards truth and honesty. (RPT 622.) Mr. Ruiz then went on to state that the defense has a right to adequately cross-examine a witness, an efficient cross-examination necessarily requiring thorough investigation of the witness’s background. (RPT 623.) Of course, because the State denied Robert access to Conya Lofton,it remainsentirely unknown what might have been learned had such an investigation been undertaken. Respondentfinished this curious line of defense by arguing that since the defense already had some impeaching material on Ms. Lofton,then it logically followed that additional impeaching material was unnecessary, stating that “Williams was provideddetailed information regarding Conya L.’s criminal history.” (RB 64.) To assert that such material as provided should be more than sufficient to establish Mr. Lofton’s true character, and that providing further materials to defense counsel would be nothing more than redundant, renders Respondent’s proposition a difficult argumentat best. Respondent’s third argument defending the court’s decision to withhold from defense counsel the meansto effectively prepare for the cross-examination of Ms. Lofton wasthat there was ample corroboration of Ms. Lofton’s identification of Robert as one of the individuals involved in the murders. Respondentoffers this argument in an attempt to rebut the notion that Ms. Lofton was, in essence, the whole of the prosecutor’s case against Robert. Even Prosecutor Ruiz admitted the importance of Lofton’s testimony, saying that his case “hing[ed] substantially, if not entirely, upon her [Lofton’s] identification” of the individuals responsible for the crime. (RT 39.) Respondent, in attempting to pursue this strategy, chose to offer facts corroborating the claim that a crime did indeed take place, while failing to admit that the real issue was corroboration of Ms. Lofton’s identification of Robert. To be very clear, there was absolutely no 27 corroboration of Ms. Lofton’s identification of Robert. There were no other witnessesto the murders and no forensic evidence linking Robert to the murders. (RT 2996.) There was no physical or testimonial corroborating evidence to support Mr. Lofton’s identification of Robert; consequently, her veracity and the reliability of her identification of Robert were issues of central concern throughout the investigation, pretrial, and trial. Respondent, in defending thetrial court’s decision to bar access to Ms. Lofton, relied on this Court’s decisions in Alvarado v. Superior Court (2000) 23 Cal.4th 1121 and People v. Panah (2005) 35 Cal.4th 395. While Respondentis correct in stating that Alvarado and Panah allow for withholding witness information from the defense in certain circumstances, these cases differ from the facts at hand in that in both cited cases there were credible allegations of potential injury to the witnesses. In Alvarado, not only were there credible connections between the defendant and the Mexican Mafia, a well-organized group knownfor eliminating those witnesses whocooperate with authorities, but each of the three witnesses were incarcerated in the same facility as the defendant and, further, one witness had already been physically attacked. (Alvarado, 23 Cal.4th at 1129.) In Panah, the prosecution obtained information that the defendant conspired to murder two witnesses, information that was credible enough to cause the prosecution to launch an investigation into the matter using an informant. (Panah, 35 Cal.4th at 455-56.) Unlike these two cases, and the clear link between the defendants and the threats, there was nocredible evidence linking Robert directly to the threats made to Ms. Lofton. As such, the withholding of Ms. Lofton’s information from the defense was improper and cannot be supported by the cases relied on by Respondent. Finally, any potential concerns for the safety of Ms. Lofton could well have been addressed by providing her information solely to Robert’s counsel. Most notably, Respondent 28 failed to show how disclosure of Ms. Lofton’s whereabouts to only the defense counsel would in any way increase herrisk of harm. Pursuant to §1054.2, defense counsel is prohibited from disclosing information regarding witnesses, obtained through discovery, to the accused. Further, there was no credible link shown betweenthe threats made to Ms. Lofton and Robert orhis counsel. The alleged threats Ms. Lofton received originated from a third party; consequently,it is more than conclusory to presume that discovery given to Robert’s counsel would have increased any risk for Ms. Lofton from an unknown,unaffiliated third party. There was simply no “good cause” here to support the nondisclosure of her information to Robert’s counsel. The provision allowing disclosure of witness information to counsel only under §1054.2 adequately protects the witness while preserving the defendant’s constitutional rights to confront and cross-examine witnesses. Ms. Lofton was not only a witness in the case against Robert, but she wasthe critical witness, one whose veracity and reputation were essential to the jury’s determinations. As such, it was the defendant’s right to the discovery of her information in order adequately to prepare for trial and cross-examination. Without a clear showing that such disclosure under §1054.2 would have placed her in any greater danger, the defense could and should have been allowed access to Ms. Lofton’s whereabouts. ARGUMENT IV IN DENYING ACCESS TO THE PRIMARY PROSECUTION WITNESS, THE STATE PRECLUDED ROBERT WILLIAMS THE OPPORTUNITY TO MEANINGFULLY CONFRONT AND CHALLENGE LOFTON'S TESTIMONY IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS Once again, Respondent has mischaracterized Appellant’s argument in an attempt to Justify the state’s refusal to supply Robert information with the potential to generate an effective line of cross-examination. Respondentwrites, “Williams argues that the above cases support the 29 conclusion that criminal defendants must always (not withstanding Penal Code, § 1054.7) be provided the current addresses ofall prosecution witnesses, including those threatened with death....” (RB 68.) Respondent’s characterization is troubling in that it is not only inaccurate, but further that it posits an absurd position that there must be disclosure of witness whereabouts even whenthe witness is threatened with death. To be clear, it is Robert’s positionthat if it had been established that credible threats were made by Robert and directed at Ms. Lofton,that it would indeed be foolhardy to disclose Ms. Lofton’s whereabouts. However, there never existed any credible link between Robert andthethreats allegedly made to Ms. Lofton. Consequently, Penal Code § 1054.7 and this Court’s holding in A/varado are inapplicable. Furthermore, Respondent’s reliance on Pennsylvania v. Ritchie (1987) 480 U.S. 39 and People v. Hammon 15 Cal. 4" 1117 in no way supports denying the defense accessto information with the potential to aid their client’s defense. Ritchie ’s lead opinionstates thattrial courts have the right “to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.” (/d. at p. 52.) In Robert’s case, the issue of restricted questioning never even evolved because the defense was denied the opportunity to effectively investigate Ms. Lofton, and thus any concerns aboutrestricting questions never materialized. The trial courts in both Ritchie had the advantage of having the evidence before them and were thereby able to evaluate fully its value in relation to their defense. Here, without inquiry having been made into Conya Lofton’s reputation in her community, there was no way for the court to independently evaluate any potential value inherent in the information that could be garnered by disclosing her address. The trial court’s ability to evaluate the materiality of available evidence in Ritchie and Hammonensuredthat those defendants would not be unduly restricted from effective cross-examination becausetheir trial judges could independently 30 determine if such evidence would lead to meaningful cross-examination. Robert’s trial judge had no such evaluative opportunity, and, consequently, if providing Ms. Lofton’s address might have led to developmentof an effective line of cross-examination, the arbitrary denial of that address denied Robert a chance to pursuethat line of inquiry. ARGUMENT V IN LIMITING THE CROSS-EXAMINATION OF LOFTON, THE COURT — DENIED ROBERT WILLIAMSHIS OPPORTUNITY TO CONFRONT AND CROSS-EXAMINE THE PRIMARY WITNESS AGAINST HIM Asestablished throughoutthe trial, Conya Lofton was the primary witness in Robert’s capital trial and as such, defense efforts to investigate her character and question her credibility werecritical. Yet as set forth in Arguments III and IV,the State effectively stymied most efforts to investigate Ms. Lofton, her family, friends, co-workers, associates, and neighbors. Despite the best efforts of the prosecutor to block access to any part of Ms. Lofton’s life, however, some information reflecting on her character and credibility was obtained by the defense. The information the defense was able to unearth included 1989 and 1991 welfare fraud convictions, a warrant issuing from the second conviction for failure to pay a fine, Ms. Lofton’s lie abouther failure to pay the fine, two instances of providing false information on employment applications, a Medi-Cal fraud conviction, and providing false informationto a state licensing board. (CT 6332-33; RT 3122-39.) Of these, the defense was specifically precluded from cross- examining Ms. Lofton on the 1994 warrant that issued from the 1991 conviction and herlie in attempting to explain whyshefailed to pay a fine that issued from that warrant. (CT 6332-33; RT 3098.) Respondent’s efforts to rebut the limitations placed by the court on the examination of Ms. Lofton create some factual confusion. To be clear, the court permitted the defense to prove 31 the underlying facts of the 1994 welfare fraud warrant but only with a significant caveat. Specifically that such an inquiry might, according to the judge, “open some doors” regarding evidence that Ms. Lofton might have been threatened by Robert. (RT 3098.) Given such a warning the defense was effectively precluded from the inquiry. Consequently Respondent’s implication that “Williams”trial counsel elected not to introduce evidenceofthe subject warrant...” is misleading. (RT 71.) The court’s ruling, not counsel’s decision, was the determining factor. Following the defense’s restricted examination of Ms. Lofton, Prosecutor Ruiz effectively mitigated much of the impeachment. Hesolicited from Ms. Lofton that she bore a child out of wedlock at age seventeen with a “dead-beat” father, that she had no parental financial assistance, and that her ensuing legal problemsall resulted from her dire financial straits. (RT 3128.) Through Mr. Ruiz’s examination of Ms. Lofton, she was portrayed to the jury as a young single mother,all alone and trying to do the best she could for her baby. Mr. Ruiz’s rehabilitation effectively blunted the defense impeachment of Ms. Lofton and may even have enhanced her character in the eyes of the jury. It is Appellant’s position that defrauding the welfare system in order to obtain financial and medical assistance when undertaken by a seventeen yearold girl for the sake of her child is markedly different than lying about not being able to pay a fine when one has the meansto pay. Asto the former, the jury could well conclude Ms. Lofton’s actions were understandable in that they were directed to feeding, clothing, sheltering, and obtaining medical services for her baby. The latter, however, is in truth about attempting to protect herself from punishment. At the time the warrant was issued for failure to pay the fine, Ms. Lofton was twenty, not seventeen, and even then it took her more than three years to comply with the court’s order to pay. (RT 3138- 32 39.) The defense proffered that Ms. Lofton lied when she claimed she did not have the moneyto pay the fine, even though she had ample resources to comply with the court order. (RT 3139.) Respondent, while in essence agreeing to the essential facts, attempts to muddythe issue by stating: “Williams’ trial counsel wished to introduce the warrant for purposes of showingthat Conya L. had access to money during the time of the murders ....”” Such a characterizationfails to strike the point. The cross-examination point that was denied wasthat Ms. Lofton lied about not having moneyto paythe fine. Questioning on this precise point most certainly would have called Ms. Lofton’s ability to be a truthful witness into question. The court howeverdisagreed, “We’re not goingto get into that.” (RT 3139.) Yet despite the court’s ruling specifically limiting of cross-examination, Respondentasserts that, “No meaningful limitations were placed on Williams’ ability to cross examine Conya L.or to tenaciously attack her credibility using her criminal history.” (RB 67.) The real thrust of Respondent’s argumentis that there was ample evidence, apart from this particular lie, to establish Ms. Lofton as a liar and as such,her lie about not having the funds to pay was unnecessary to establish her true character. Respondentwrites, “Williams was permitted to impeach ConyaL. with a plethora of clear, direct and objective impeachment evidence. Indeed, the jury was presented with the fact that Conya L. wasthe type of person willing to lie repeatedly and to commit fraud and perjury ....” (RB 72.) In essence, Respondent is arguing that the defense was attempting to pile on the fact that the disclosure aboutthe lie concerning herinability to pay was unnecessary, since she wasalready liar in the eyes ofthe jury. However,the reality was that the only truly impeaching evidence wasthelie about the failure to pay the fine. The material the defense was permitted to use did not accurately portray her character. Ms. Lofton had progressed from a destitute teenage mother to a woman with the 33 funds to meet her obligations, and yet she refused to do so and thenoffered a lie to explain her behavior. This was the only conduct that fully communicated her true nature as an untrustworthy witness. ARGUMENTVI ROBERT WILLIAMS’ CONSTITUTIONAL RIGHT OF SELF- REPRESENTATION WAS VIOLATED WHEN THE COURT REVOKED HIS RIGHT OF SELF-REPRESENTATION IN VIOLATION OF THE SIXTH AMENDMENT Respondent’s claim that Robert “forfeited his right to challenge the revocation [ofhis Faretta rights] because the record showsthat he acquiesced to the revocation” is without merit and is not supported by the record. To claim Robert acquiesced to losing something he had fought to gain and for which he continuedto fight is to ignore his efforts during the ten months of his self-representation during which hebattled for discovery and worked to secure an expert witness and an investigator. In contesting Prosecutor Ruiz’s efforts to have his Faretta status revoked Robert madehisposition to continue his self-representation clear: Asfar as ourtrial date stands now, I am readyto go to trial... know mycase... I know I’m in over my head, but the only reason J want to fight my case, because I don’t want to go to trial with somebody like Mr. Gunn that don’t have knowledge of the case, and go through argumentslike this. (RPT 1338-42.) These are not the words of someone acquiescingto forfeiting his right to represent himself. Rather these are the words of a man readyfortrial, though fully aware ofhis inadequacies. Respondent seemsto assert that because Robert was “over my head”he had somehow waived his Faretta rights, however as the Court advised in Faretta, “a defendant need not himself have a skill and experience of a lawyer in order to competently andintelligently choose self-representation.” (Faretta, supra, 835.) Acknowledging that he may not have been up to the task was no revocation. Furthermore in the court’s remarks in revoking Robert’s pro se 34 status, he madeit clear that revocation was due to Robert’s alleged delay tactics not due to any acquiescence on Robert’s part. “All of these have been delay tactics. And I’m going to remove him from his properstatus.” (CT 1354; RPT 1335-51.) Accordingly the issue is drawn and the issue is not about Robert’s acquiescing to revocation but rather about the propriety of the court’s decision in terminating Robert’s constitutional right to self-representation. Turning to the merits of the issue, it is Respondent’s primary premise in asserting that the revocation of Robert’s right of self-representation was proper dependson the notion that Robert intentionally delayedthetrial. Indeed, several of Robert’s claims are dependent on this Court’s determination as to where the fault lies regarding the numerous delays which extended the pretrial period to eighty-three months. Robert is confident that following this Court’s review of the pretrial, it will recognize that the bulk of the pretrial delay was caused by the prosecutor and the trial judge andthat the trial court’s revocation of his right to self-representation was erroneous. Robert’s ten-month period of self-representation began on August 16, 2000, and ran through June 28, 2001. (CT 1354; RPT 1335-51.) The court’s comment upon taking Robert’s waiver of counselis significant: “One of the reasons for wanting to represent himself, because he wants to get it [his case] to trial....” (CT 1162; RPT 1120.) This commentis crucial in understanding the events that played out over the next ten months and speaks to Robert’s desire to get his caseto trial without delay, as opposed to Respondent’s assertion that Robert was engaged in dilatory tactics throughout his ten-month Faretta period. At the time of Robert’s Faretta appointment on August 16, 2000, his trial was set for February 2, 2001. That six-month period leading up to the trial date was completely consumed by the State’s discovery failures, yet Respondent attempts to deflect notice of these discovery 35 failures by instead addressing Robert’s squabbles with his standby counsel. (RB 45-46.) As the record makes abundantly clear, when Robert wasfinally forced to seek a newtrial date on April 3, 2001, the sequence of events clearly indicates that the blame for that continuance was solely on the prosecutor and in no way caused by any conflict between Robert and standby counsel. On October 6, 2000, one and-a-half monthsafter his appointment and with a looming trial date of February 2, 2001 , Robert hadstill not been provided the discovery that Mr. Ruiz had previously said he would provide. (CT 1167-72; RPT 1153.) At that hearing, Robert’s standby counsel Mr. Gunn noted that Mr. Ruiz, despite previously representing that he would “make a whole newset of discovery,” failed to provide that discovery. (RPT 1139, 1154.) Mr. Ruiz, not Robert, sought and received a continuance of the October 6 discovery hearing to November3, 2000, in order to meet his discovery obligations. (CT 1173-74; RPT 1161.) Respondent, in referring to that same October 6, 2000, discovery hearing, failed to address the primary focus of that hearing, specifically, discovery. Instead, Respondent discussed Robert’s interaction with his investigator and with defense counsel Mr. Gunn, while completely ignoring Mr. Ruiz’s discovery delay. (RB 74.) It is noteworthy that Robert’s concerns about Mr. Gunn andhis investigator had no impact on any delaysin getting the case to trial, whereas the discovery delay caused by Mr. Ruiz wasthe sole cause of the continuance. At the next discovery hearing, on November3, 2000, two and-a-half months after obtaining Faretta status, Mr. Ruiz was not present, and it was represented that he wasill. Accordingly, on the State’s motion, the discovery hearing was continued another three weeksto await Mr. Ruiz’s return. (CT 1177-78; RPT 1162-65.) At the November 22, 2000, discovery hearing, a stand-in prosecutor represented that Mr. Ruiz would be out “another 3 to 4 weeks.” (CT 1179-80; RPT 1170.) The judge directed the stand-in prosecutor to provide discovery. (CT 36 1179-80; RPT 1171.) The court’s directive went unheeded, as no discovery was forthcoming. Respondent, in his brief, failed to address any of the circumstancesofeither hearing, neither the delays caused by Mr. Ruiz’s absence northe state’s failure to make any arrangementfor discovery that Mr. Ruiz had previously promised to provide. On January 4, 2001, six weeks after the judge’s discovery admonition and four and-a-half months into Robert’s self-representation, no discovery had been provided, and Mr. Ruiz had still not appeared. With the February 2, 2001, trial date rapidly approaching,a clearly frustrated judge urged the State to appoint another prosecutor and again commented onthe State’s discovery failure. (CT 1182; RPT 1175-76.) Once again, Respondentin his brief opted to completely ignore this hearing, which again focused entirely on the discovery delays caused by the prosecutor. Mr. Ruiz reappeared on January 12, 2001, five months post-Faretta. During Mr. Ruiz’s two and-a-half month absence no discovery had been provided. (CT 1175-91; RPT 1112-88.) Respondent’s only comment regarding this hearing wasa note that “the prosecutor represented to the trial court that Williams wanted ‘all of the items that ha[d] been generated in this case’ and offered to provide Williams with a list of the discovery materials.”” (RB 75.) Note that Respondentin no waystates that the delays were at the instance of Robert, and further note that there is no allegation of any dilatory conduct by Robert. At the hearing, Mr. Ruiz acknowledged, “T don’t have [a] problem with any of the items Mr. Williams is seeking... .” (CT 1183-91; RPT 1178-93.) With the February 2, 2001, trial date less than three weeks away, andstill without the discovery that had been promised since Robert’s appointment as his own counsel, Robert was forced to request a trial continuance to April 3, 2001. (CT 1207; RPT 1196-1212.) The court, 37 acknowledging that the case “has been dead in the water...,” again admonished Mr. Ruiz: “Don’t wait until we come backto court to get them [discovery] to him.” (CT 1183; RPT 1178-86.) On January 26, 2001, Mr. Ruiz provided some discovery butfailed to turn over two taped interviews, demanding Robert first provide payment. (CT 1204; RPT 1192-93.) Five dayslater, on January 31, 2001, the court attempted to transfer discovery obligations from Mr. Ruiz and ordered the District Attorney’s investigator to facilitate what Mr. Ruiz could or would not do. (RPT 1335-51.) The efforts proved futile, unfortunately, and there was no indication the investigator initiated any contact with Robert. In addition, Robert could not complete any of his collect calls from jail to the investigator. (CT 1210; RPT 1241.) A month later, February 23, 2001, because no discovery had yet been provided, the court ordered Robert to resubmit his discovery list to Mr. Ruiz. (CT 1208; RPT 1213-19.) A further three weekslater, on March 16, 2001, following Mr. Ruiz’s withholding of Robert’s arrest clothing andthetest results of that clothing, Robert was again forcedto seek a trial continuance from trial date just three weeks hence. The court agreed andset the new trial date of June 4, 2001. (CT 1234-40; RPT 1228-52.) Instead of addressing the true causes for this continuance, Respondent again attempts to deflect the issue by discussing Robert’s efforts to disqualify the trial judge and to recuse Mr. Ruiz. (RT 75-76.) Two observations are warranted: in the first place, neither effort delayed the trial date, and secondly, the motion to recuse Mr. Ruiz was warrantedin light of his conduct, including his discovery failures and misrepresentations. (See AOB fn 26, 27, and 28.) In fact, Mr. Ruiz’s claim regarding the testing of Robert’s arrest clothing proved false. In March and April, 2001, following Robert’s allegation that the clothing had been located and tested, Mr. Ruiz announcedthe “discovery”of a bag containing the clothing as well as test results establishing that no blood was found onthe clothing. (CT 1251- 38 54; RPT 1281-84.) Given the subsequent events, Respondent’s implication that Robert’s efforts to recuse Mr. Ruiz as frivolous prove groundless. (RB 75-76.) Aslate as April 17, 2001, eight months into Robert’s ten monthsofself-representation, and now less than six weeks from the June 4, 2001, trial date, yet more discovery problems had surfaced. Mr. Gunn represented that in the seven boxesjust turned over by Prosecutor Ruiz, “some things were missing.” Mr. Ruiz responded that he would makethose itemsavailable within the week. (CT 1258; RPT 1299-1311.) Three weeks later on May 1, 2001, with the newtrial date a month away, Mr. Gunn represented that the second stand-by counsel, Mr. Cormicle, could not be present until July. The judge asked Robert if he would be willing to resetthe trial date for late July, to which Robert responded,“I didn’t come here to request no time. I didn’t ask for no continuance.I said, if you are going to continue it, I wouldn’t oppose it.” (RPT 1315.) The court then specifically inquired if Robert needed a continuance, to which he replied that he did not. (RPT 1315-16.) Nonetheless, the court continuedthe trial to July 30, 2001. (CT 1336; RPT 1312-27.) Ironically, on June 28, 2001, Mr. Ruiz, whoseillness from the proceedings and whose discovery obstructions had pushed backthetrial claimed that Robert was engagedin “delay tactics” and urged the court to terminate Robert’s Faretta status. (CT 1354; RPT 1335-51.) Robert responded by stating he was readyfor trial and assured the court he was not seeking to continuethe trial date. (CT 1354; RPT 1335-51.) Nonetheless, the court acquiescedto the prosecutor and revoked Robert’s self-representation. Self-representation is constitutionally protected. It shall not be terminated unless thereis “serious and obstructionist misconduct.” (Faretta, 422 U.S. at 834-35.) It cannot be seriously entertained on the record of this exhaustive pretrial and, in particular, of these ten monthsofself- 39 representation, that Robert’s conduct wasdisruptive, let alone seriously disruptive, or that his conduct during those ten months threatened the core integrity of the trial. The record illustrates a defendant whoseactive participation in his own case revealedhis desire to getto trial as quickly as possible. The trial judge erred in terminating Robert’s self-representation and, as a result, Robert is entitled to a new trial. ARGUMENTVII ROBERT WILLIAMS’ CONSTITUTIONAL RIGHT OF SELF- REPRESENTATION WAS VIOLATED WHEN THE TRIAL JUDGE FAILED TO REMOVE STANDBY COUNSEL DESPITE COUNSEL’S CONFLICT OF INTEREST WITH ROBERT Respondent’s argument that Robert’s right of self-representation was not violated by standby counsel’s conflict with Robert is two-fold. First, there is no right of conflict-free standby counsel, and second, that even if there was sucha right, since the conflicted counsel “never took meaningful control of the case,” no harm occurred. Mr. Gunn wasfirst appointed as counsel for Robert on September 2, 1999. (RPT 1024- 25.) Frustrated by his three denied Marsden motions, Mr. Gunn’slack of preparation, and a desire to get to trial, Robert brought a Faretta motion on July 14, 2000. The Faretta motion was granted on August 16, 2000, and Mr. Gunn wasdirected to remain as standby counsel, an action that Robert objected to on multiple occasions. (CT 1154, 1162; RPT 1094, 1103-49.) On October 5, 2000, Robert informed the court of his pending civil suit against Mr. Gunn for professional negligence. Thoughthe court refused to remove Mr. Gunnat that time, Robert continuedin his efforts to have Mr. Gunn removedas standby counsel on May 1, 2001, and again on June 15, 2001. (CT 1336, 1340-43; RPT 1328-29, 1335.) Robert arguedthat his civil suit against Mr. Gunn created a conflict of interest between them: 40 I don’t feel that if he was to take mypro perstatus, or something was to happen to—my pro per status was taken, Mr. Gunn wastotry the case, why would he actually puthis best foot forward to win the case when he standsto lose the civil case, if I—if I win in the criminal case? (RPT 1336.) Further, Mr. Gunn himself indicated that he too was concerned abouta possible conflict with his remaining as standby counsel for Robert: You know,it does create some questions. I was concerned enoughthatI called the State Bar on this matter and spoketo their ethics hot line. Of course they don’t—they’re not willing to render an opinion. J mean, an opinion comes from them actually having a litigation of the matter. But they—the only thing—they referred meto the duty of a lawyer to withdraw where lawyers sue clients. That was the closest opinion that they had ....50 [can’t say that the information is overly helpful, but it has caused me some concern. (RPT 1337.) On June 28, 2001, Mr. Ruiz movedto relieve Robert of his pro per status, which the judge granted. (CT 1354; RPT 1335-51.) Following the revocation of Robert’s pro per status, the court once again appointed Mr. Gunn astrial counsel. However, six weeks later, on August 20, 2001, Mr. Gunn once again raised concerns about “continuing the representation of [Robert], partly due to the malpractice suit that .... [Robert] filed against [Gunn].” (CT 1358; RPT 1365.) In declaring a conflict of interest, Mr. Gunn cited a change in law affecting his representation of Robert: [T]he Supreme Court has ruled that the personfiling the lawsuit, plaintiff, must be found factually innocent to sustain or to, you know,continue his lawsuit. So there is—atleast there is an apparent look of a problem there, when you lookat that in the context of the filing of the lawsuit against the attorney who’s not the person in thetrial. (RPT 1365-66.) The court acquiesced and appointed Mr. Cormicle as counsel for Robert. (RPT 1371.) Respondent’s assertion that there is no recognized right to conflict-free standby counselis problematic. In essence, Respondent’s positionis that standby counsel’s loyalties to and efforts on behalf ofhis client are irrelevant. Can it be Respondent’s position that the only role of 4] standby counselis to step in as counsel should the accused be stripped of his Faretta status? Are we to ignore the teaching of the Washington Supreme Court in State v. McDonald (2001) 143 Wash.2d 506, 511-12, that “standby counsel must be (1) candid and forthcomingin providing technical information/advice, (2) able to fully represent the accused on a moment's notice, in the event termination of the defendant's self-representation is necessary, and (3) able to maintain attorney-client privilege.....” Further, are we to ignore the Supreme Court of the United States’ definition of the role of standby counsel, that “the trial court has the authority to appoint standby counsel ... to explain court rulings and requirements to the defendant and to assure a defendant lacking in legal knowledge doesnot interfere with the administration ofjustice.” (McKaskle v. Wiggins (1984) 465 U.S. 168, 177-78.) Standby counsel is consideredto be a type of advisory counsel, one that is appointed by the court in order to be present during proceedings in an advisory capacity and to step in if the defendant’s self-representation is terminated. (Faretta, 422 U.S. at 834 n.46; McKaskle, 465 U.S. at 177-78.) To underscore Mr. Gunn’s involvement, he was continuously active in the proceedings during his time as standby counsel. He was appointed to potentially step in if needed, andin this case, when he was appointedthetrial court stated, “[O]bviously, I have appointed standby counsel because I think there is a better chance that you [Gunn] or Mr. Cormicle are going to end up trying this case.” (RPT 1319.) Are we to deny a defendant the loyalty generally expected of counsel whenit is situated in this role? Whether actively advising Robert or merely on the sidelines, the trial court appointed Gunn to step in should Robert’s self-representation status end. Gunn had to be alert and aware and committed to hisclient to be ready to step in. Respondent’s position that a conflict of interest would not interfere with this duty simply does not comport 42 with constitutional law in place to protect a defendant’s right to conflict-free representation under the Sixth Amendment. Failing to make the case that standby counsel need notbe conflict free, Respondentfalls back to the State’s default position that the court’s error in not appointing conflict-free standby counsel was harmless becausethe “conflicted attorney never took meaningful control of the case once William’s pro se rights were terminated.” (RB 83.) Mr. Gunn took over the case on June . 28, 2001, and wasfinally conflicted from the case on August 20, 2001. Mr. Gunn’s representation, both as counsel and as standby counsel, comprised 23 months and several significant developments, including numerous discovery obstructions by Prosecutor Ruiz. With a civil suit looming, Mr. Gunn’s representation of Robert was significantly impaired—had Mr. Gunn effectively represented Robert during the pretrial period, and had the court ruled in Robert’s favor, Robert maintains he would have been acquitted and would haveprevailedin his civil suit against Gunn. By the time Mr. Gunn finally convinced the court to be relieved as Robert’s attorney and appoint Mr. Cormicle in his place, the prejudice resulting from Mr. Gunn’s participation in Robert’s defense had already beenrealized. ARGUMENTVII DISMISSAL OF TWO AFRICAN-AMERICAN PROSPECTIVE JURORS WITHOUT CAUSE “STACKED THE DECK” AGAINST ROBERT WILLIAMS, DEPRIVING HIM OF DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT The acknowledgementof both this Court and the United States Supreme Court that prospective jurors sometimesinitially demonstrate confusion abouttheintricacies of capitaltrials wasall but lost on the trial judge while entirely ignored by the Respondent. In turn, both thetrial judge and Respondentfailed to heed the advice that merely experiencing initial concern or 43 hesitancy about their ability to impose a death sentence does not disqualify jurors from sitting on capital cases. (AOB pg. 139,citing Gray v. Mississippi (1987) 481 U.S. 648, 653.) In an ideal world, prospective jurors would respondto inquiries asto their ability to mete out a death sentence with a simple anddirect, “Yes, I can impose the death penalty.” Thereality, as recognized by the United States Supreme Court, is that many prospective jurors struggle with such a query. Forthe first time in the experience of many citizens, they are forced to confront their feelings vis-a-vis capital punishment when pushed up against the hard reality of a death penalty trial. Prospective jurors with responses evidencing thoughtful concerns and even some initial hesitancy should be valued in sitting in judgmentof life and death. Some angst and even someinitial equivocation is often the norm and can neverbethe basis for disqualification. As the United States Supreme Court instructed in Adams v. Texas (1980) 448 U.S. 38, 50, to exclude a juror “where his only fault was to take [his] responsibilities with special seriousness” and who might harbor an inability to state positively whether or not his deliberations would be “affected” by the possibility of the death penalty, violates the Witt standard. (Wainright v. Witt (1985) 469 U.S. 412, 417.) Confusion, hesitancy and apprehension can cloud a prospective juror’s initial response butis not necessarily determinative as that prospective juror works through the process with the assistance of inquiries from court and counsel. Most prospective jurors, even thoughit may be sometimesdifficult, will come to understand their feelings and recognize whether they can follow the law.It is at the conclusion of the inquiries whencritical decisions are madeas to which prospective jurors are qualified to sit in these special trials and which are irrevocably opposed and thus unqualified tosit. In excusing Prospective Jurors Wood and White, both African-Americans, from the capital trial of African-American Robert Williams,the trial judge not only failed to follow the 44 Witt standard that to disqualify a juror, his view must “prevent or substantially impair the performanceofhis duties...” (/d. at 424.), but further failed to adhere to the Witt admonition that some initial confusion and uncertainty are to be expected and should not necessarily be determinative. (/d.) During initial questioning, it emerged that Mr. Wood did have some concerns about the death penalty but never concerns that evidenced an irrevocable unwillingness to follow the law. (RT 1400.) Respondentselectively pulled out responses that Mr. Wood made under questioning by the court without regardto the full thrust of that exchange and then summedup the exchange between the court and Mr. Woodas follows: “he [Mr. Wood] could not give the court his assurance that he could impose death under any circumstances.” (RB 87.) Respondent’s characterization ignored Mr. Wood’s assurancethat“if it’s a heinous crime, probably. I don’t know. But I can’t just put it in cement, yes or no.” And whenfurther pressed by Prosecutor Ruiz as to whether he could vote for death if “warranted underthe facts and the law,” Mr. Wood replied, “[Most] likely I could if it’s a heinous crime.” (RT 1400.) In a death penalty scenario, a limitation to only impose death in the event of heinous crimesis no limitation whatsoever and no indication that this man was “irrevocably opposedto capital punishment.” Thetrial judge, in dismissing Mr. Wood, misstated the standard: “If a person cannot say they would be able to vote for death that would be proper groundsfor cause.” (RT 1405-07.) Had the judge instead applied the correct standard and recognized that it was never established that Mr. Wood demonstrated an irrevocable unwillingness to follow the law and obey his oath, Mr. Wood would not have been excused. Onherjuror questionnaire, Ms. White,the other prospective African-American Juror challenged by Prosecutor Ruiz and excused by the court, expressed her initial reservation in 45 imposing the death penalty but then through oral questioning said, “I thought aboutit. I would be able to vote for the death penalty.... | don’t want to condemn anybody to death, butif the evidence is overwhelming, as you say, and that has to be the sentence, then so beit.” (RT 1288- 89.) Despite her answer, Mr. Ruiz, in a dogged attempt to disqualify her, asked, “Ms. White, can you comein here and sentence this man to death, if you feel it’s warranted?” She responded,“I believe I would have a difficult time.” (RT 1405.) That response, coupled with herearlier “then so be it” comment, madeit clear that while opting for death would be difficult, she was willing to do so. Difficult is not “irrevocably opposed.” Respondent’s fallback position, that the reviewing court should give deferenceto the trial court, is only applicable whenthetrial court’s “findings are fairly supported by the record and ambiguities are to be resolved in favor of the trial court’s assessment.” (People v. Howard (1998) 44 Cal. 3d 375, 418.) The court’s decisions to dismiss Mr. Wood and Ms. White were not supported by the record. Moreover,the trial court misstated the Witt standard, undermining the basis for deferring to thetrial court’s decisions to dismiss these jurors for cause. These two Prospective Jurors brought honesty and candorto the courtroom as they struggled with the difficult decision that they might be called upon to make. To dismiss them wasreversible error. ARGUMENTIX ROBERT WILLIAMS’ CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY WAS VIOLATED WHEN THE PROSECUTOR USED PEREMPTORY CHALLENGESTO DISMISS THREE AFRICAN-AMERICAN PROSPECTIVE JURORS BASED ON GROUP DISCRIMINATION Prosecutor Ruiz’s efforts to purge African-Americans from the jury continued into the peremptory phase ofjury selection. Respondent, prior to defending the prosecutor’s use of 46 peremptory challenges as demonstrating no purposeful racial discrimination, offers two main arguments. First, she suggests that “Williams” complaint on appeal regarding Prospective Juror McBrayeris specious since . . . the prosecutor never even exercised a peremptory challenge against [him].” (RB 92.) And second, Respondentasserts that defense counsel never brought a Wheeler motion concerning that challenge. While Appellant acknowledgesthat it was at a somewhat unconventional stage ofjury selection when the peremptory challenges were made and the Wheeler motions brought and ruled upon,it is, however, absurd to now claim that the prosecutor did not peremptorily challenge Prospective Juror McBrayeror that defense counsel never raised a Wheeler concern. Prosecutor Ruiz’s peremptory challenge of Mr. McBrayer was a somewhatinvolved process which began whenthe court denied the prosecutor’s “cause” challenge of him. (RT 1409.) In denying the challenge for cause, the court stated: “Although I fully understand why you people to--might wantto stipulate to [McBrayer], one of you might want to challenge him peremptorily. His answers were sufficient that I can’t, in good conscience under the law, grant a challenge for cause.” (RT 1409.) Mr. Ruiz then inquired, “[b]efore we bring the jury in, I’ve talked with Mr. Cormicle. And I do anticipate that there may be a few Wheeler motions, how do you want to handle that, once westart exercising perempts?” (RT 1409.) The court responded: “Correct me if I’m wrong,that federal case says that it doesn’t take a prima facie showing any more before we get to asking the DA, ‘What is your reason for doing so?’ [{] Do you both agree?” Both counsel agreed. (RT 1409-10.) The court then outlined the process to be used for dealing with peremptory challenges: “So I think the safest way to avoid harm toeitherside, 1s that if there’s going to be a challenge 47 on an African-American . . . we should do that at sidebar so we don’t earmark that juror.” (RT 1410-11.) Mr. Cormicle: I’m still a little unclear on how procedurally you wanted it [making a Wheeler challenge] to be done, though. You want-- after he would makea challenge? (RT 1411.) The Court: Before he makes a challenge on an African-American, we’ll doit at side bar. (RT 1411.) Mr. Cormicle: That’s what ] was going to talk about. (RT 1411.) Mr. Ruiz: Judge, maybe I can--see, part of the problem I think it’s pretty clear that there’s going to be somejurors that I’m going to kick. I have no problem stepping out of the ordinary procedure and identifying those individuals now so that we can take up that issue. (RT 1411.) The Court: I think Mr. McBrayeris going to be one. (RT 1411.) Mr. Ruiz: Yes. And based on his questionnaire, there is no way I could not perempt-- make a peremptory challenge as to Mr. Hunter, Chris Hunter. (RT 1411.) The Court: You know what? (RT 1411.) Mr. Ruiz: Specifically later, whenever, you want me to. (RT 1411.) The Court: Actually, do you see any objection to talking about the ones he [Ruiz] anticipates making now so that you can make your record and make the [Wheeler] motion, either have it granted or denied? (RT 1412.) Mr. Cormicle: I would suggest we do it now and save the jury from all of us. (RT 1412.) Mr. Ruiz then offered his reasons for peremptorily challenging Prospective Juror Hunter, followed by Mr. Cormicle’s Wheeler motion. (RT 1412-15.) The court then specifically denied the Wheeler motion as to Mr. Hunter. (RT 1416.) Following the ruling, Mr. Cormicle, perhaps still somewhat vague on the process being instituted by the court, initiated the following exchange: Mr. Cormicle: Even though wehavetalked as if the Wheeler/Batson motion was made,I don’t think I actually satisfied it so I need to formally say I’m making that motion. (RT 1418.) The Court: And I think--Mr. Cormicle, correct me if I’m wrong, that when he [Ruiz] makesthe [preemptory] challenge, you don’t needto doso.Is that correct? You agree with that? (RT 1418.) Mr. Cormicle: Yes. Mr. Ruiz: And I would agree that the defense has made those [Wheeler motion] when we could doit. The Court: That it’s timely? Mr. Ruiz: Yes, I would agree. 48 The Court then questioned Mr. Ruiz as to whether there was anyone else he would like to peremptorily challenge. Mr. Ruiz answered there were others, and went on to challenge Mr. McBrayer: Yes. Judge, sorry. But I do have to make a peremptory challenge as to Mr. McBrayer: I won’t belabor the point. He’s the last juror up against the wall.” (RT 1418.) The Court: I think it is excellent. You’ve already stated your reasonsof the challenge for cause. You’re welcometo addtoit. I think you said everything that needs to be said. (RT 1418.) Mr. Ruiz: You'll rememberI challenged him for cause not on the death issue, but on his bias against law enforcement. (RT 1418-19.) The Court: And on every different question. Mr. Ruiz: Correct. I would-- I would put the defense on notice that when wegetto that individual [McBrayer] I would be making a motion. I would be making a peremptory challenge as to him. And wecan take that issue up now with respect to Mr. Cormicle’s concerns about my Wheeler activity. (RT 1419.) The Court,in inviting Mr. Cormicle to make his Wheeler challenge, said “[y]ou’re welcometo be heard if you'd like. I think you may havealreadysaid it [basis for the Wheeler motion]. But you can addto it if youlike, sir.” (RT 1419.) Mr. Cormicle: I’l submit it as to McBrayer. (RT 1419.) The Court: For the same reasons that I stated on Mr. Hunter --and actually might have said the same thing on Mr. McBrayer during the challenge for cause--that I find there’s a race- neutral reason in my opinionfor either side to challenge Mr. McBrayer. Butat least in dealing with the People’s challenge--peremptory challenge, there are more race- neutral reasons to challenge Mr. McBrayer that we went over on the challenge for cause than there is on Mr. Hunter. [§]] So I would deny the [Wheeler] motion for him also. (RT 1419.) Mr. Ruiz: Yes. I think those are the only ones [peremptory challenges]. The defense would want to make a motion and make a record. And I don’t mean to speak for him.I could be wrong. And we’ll take it up if I’m wrong.” (RT 1420.) The Court: Okay. J think that’s probably the cleanest way of doing it. I like that. I hadn’t considered doingit that way. For the record, if that is for the record--if it gets to Mr. McBrayer, there’s a challenge made for cause, the record is clear that Mr. Cormicle has made a Wheeler motion, and that it’s been heard, and the court will deem that motion being timely, even though it was premature. (RT 1420.) Mr. Cormicle: Actually, a peremptory challenge. I think you said challenge for cause. 49 The Court: Actually, a peremptory challenge. I think you’re correct. I did say that. Actually I meant peremptory challenge. I think you’re correct, I did say challenge for cause. (RT 1420.) The following day after the conclusion of the new challenges for cause Mr. Ruiz was asked if there were any other challenges. He responded, “[n]o, but we probably wantto talk about the Wheelers that are going to be coming up right now. Asfor cause, no others.” (RT 1523.) The Court: Okay. If I remembercorrectly, we have Mr. McBrayer and Mr. Marshall. (RT 1523.) Mr. Ruiz: Judge, I am not going to be exercising a peremptory challenge as to Mr. Marshall. I do have substantial Wheeler concerns about No8. currently sitting in No. 8. I will not--Fred Marshall, two ‘L’s.’ I just don’t feel safe going there as to Mr. Marshall. [{] However--well, obviously Mr. McBrayer | won’t even--I don’t think I need to argue Mr. McBrayerbeing a valid peremptory, non-race-based reason.” (RT 1524.) The Court: Mr. Cormicle? Mr. Cormicle: I thought he argued it [basis for McBrayer peremptory challenge] yesterday, actually. Did you not? Mr. Ruiz: I argued cause yesterday, I thought. Did I argue-- Clerk: You argued. Mr. Ruiz: --Wheeler? Clerk: Yes, on peremptory. Mr. Ruiz: Okay. Then I really don’t need to argueit. The Court: I think Mr. McBrayer--I think that I found many good reasons based uponhis answers that were totally race-neutral, and were also the samereasonsthat some of the non-African-Americans were used. | think we already did that. Mr. Cormicle: That’s correct your honor. (RT 1524.) Though somewhat convoluted and unconventional, it is clear that Prosecutor Ruiz had exercised a peremptory challenge as to Mr. McBrayer. (RB 92.) The record clearly reflects Mr. Ruiz’s own words: “I do have to make a peremptory challenge as to Mr. McBrayer.” (RT 1418.) Mr. Ruiz relied on the same argument he used to challenge Mr. McBrayer for cause. The court reminded Mr. Ruiz that he had already stated his reasons for challenge of cause and granted him a second opportunity to reiterate his reasons for the peremptory challenge. (RT 50 1418.) Furthermore, the second day of challenges Mr. Ruiz once again attempted to peremptorily challenge Mr. McBrayerand had to be reminded byboth the clerk and Mr. Cormicle that he had already made and argued his peremptory challenge. (RT 1524.) Thetranscript therefore reveals not once, but twice that Mr. Ruiz challenged Mr. McBrayer peremptorily, in direct contradiction to what the Respondent claims. Respondent’s second argument fails as significantly as the first. Respondent argues that Mr. Cormicle never arguedhisfirst step of the Batson/Wheeler motion. Once againthetrial transcript established that after Mr. Ruiz challenged Mr. McBrayer peremptorily, the court turned to Mr. Cormicle to make his Wheeler challenge. Addressing Mr. Cormicle, the court said, “[y]ou’re welcometo be heard if you'd like. I think you may havealreadysaid it. But you can add to it if youlike, sir.” (RT 1419.) In response, Mr. Cormicle said, “I'll submit it as to Mr. McBrayer.” (RT 1419.) Just as Mr. Ruiz relied on the same argument he used to challenge Mr. McBrayerfor cause, Mr. Cormicle followed suit and relied on the argument he had made during the unsuccessful challenge for cause. Respondent’s claim that Mr. Cormicle did not bring a Batson/Wheeler motion is simply wrong. Whatis completely clear is that the court, prosecutor, defense, and even the clerk, all understood that Prospective Juror McBrayer had been peremptorily challenged andthat the court had heard and ruled on the Wheeler motion. Respondent then turned to the substantive issue of whether there were race-neutral reasons for the peremptory challenges of Prospective Jurors Hunter, Fleming, and McBrayer. (RB 99-100.) He maintains that Mr. Hunter’s challenge wasjustified because he failed Prosecutor Ruiz’s self-concocted “three strike system.” Mr. Ruiz explained,“[i]f an individual hits what I think are three negative answers, regardless of race, the three strikes and you’re out, 51 basically are the wisdom of my approach.” (RT 1412.) He claimed Mr. Hunterstruck out because one, he hadrelatives in prison, two, on the questionnaire hestated that African- Americans are “rarely treated fairly in our courts,” and three, that he had relatives who were unjustly prosecuted. (RT 1412-14.) Curiously, all three of the prosecutor’s strikes arose from one answeroffered by Mr. Hunter. On his questionnaire, Mr. Hunter, based on a statement made by some of his relatives, opined that African-Americans are treated “unfairly” and “unjust” in the criminaljustice system. (RT 1413.) Under questioning by the court, Mr. Hunter concededthat most people who have run afoul of the law believe they were treated unfairly. The court then inquired further about Mr. Hunter’s questionnaire answer, indicating he harbored a “mildracist attitude.” Mr. Hunter explained,“I think | marked the wrong box. J don’t have any prejudice.” (RT 1339.) Under further questioning from the court as to whetheror not his race wouldaffect his “ability to be fair to both the People and the defendantifthe defendant’s African-American,” Hunter answered, “No, it would not.” (RT 1361.) Prosecutor Ruiz then asked whether he could “trust this system enough to makea life or death decision and votethis person to death, if you feel it’s warranted on the facts and the law?” Mr. Hunterreplied, “Yes.” (RT 1401.) Prospective Juror Hunter’s responses, especially in light of his extended dialogue with the court, demonstrated an acknowledgementthat his views onracial “fairness” were unfounded and even erroneous. Given his candid and thoughtful responses and his assurancesthat he couldbe fair to both sides, there was no legitimate race neutraljustification to challenge this juror. Mr. Ruiz justified his challenge of Prospective Juror Fleming by use ofa process quite apart from his three-strike system. “[A]s to the strategy I’m using.It’s no great secret. If there is any juror that indicated on that checklist that they’re either moderately anti-death penalty or 52 strong anti-death penalty, I’ve got a peremptory challenge left, I’m going to makeit as to that juror.” (RT 1524-25.) The court probed the reasons Mr. Fleming wrotein his questionnaire that the death penalty was used “too often,” to which Mr. Flemingreplied, “[w]ell, I feel that in a lot of situations the death penalty isn’t necessary. And there have been mistakes made where people have been put on death row, and they foundout that that person wasnot guilty. And I think that if there is an option of putting someonein prison withoutparole, that’s a better option.” (RT 1424.) Subsequentto further questioning, Mr. Fleming answered as follows: “Yes, there’s situations” where “aggravating factors would so outweigh the mitigating factors that [he] would vote for death, knowing that[he] has the alternative to vote for life without the possibility of parole[.]” (RT 1426.) In response to his religious views, Prospective Juror Flemingclarified that “myreligiousbeliefis that I should abide bythe lawsof the land. If the laws of the land are for me to choose the death penalty, and there’s no other option, then I have noother option,I have to choose the death penalty.” (RT 1424-25) Mr. Fleming was challenged basedonhisreligion and anti-death stance regardless ofhis unequivocal position that he would abide by the law and vote for death if necessary. Mr. Fleming, while struggling with the complex question incumbentin capital punishment, had thoughtfully evolved his consideration of the concept to the point where he could follow the law of the land and abide by his oath. For Mr. Ruiz to assert that Mr. Fleming’s candid and thoughtful answers were thebasis for a legitimate race-neutral reason for exclusion was, quite simply, wrong. Asalready set forth, the prosecution originally attempted to challenge Mr. McBrayerfor cause and that challenge was denied. (RT 1409.) Mr. Ruiz then broughthis peremptory 53 challenge, citing Mr. McBrayer’s alleged bias against law enforcement. (RT 1419.) When questioned by the court, Mr. McBrayerstated, ““Well, in America race prejudice exists, and as a black person or minority person growing up, you usually experienceit, and I have experiencedit. Andit’s no secret. It’s a fact of American life.” Through continued questioning by the court, however, he qualified his answer. “But your feelings don’t run so deeply that you would be prejudiced against Mr. Ruiz or Mr. Cormicle or their side simply becauseoftheir race?” Answer: “No.” (RT 1367-75.) When determining if it was Mr. McBrayer’s view that some “prosecutorstry to convict regardless of guilt,” he was asked if he could “trust the system enough to vote for the death of Mr. Williams?” (RT 1370.) Mr. McBrayer responded: “Yes.” (RT 1401.) In denying the earlier challenge for cause of Mr. McBrayer, the court held “. . . [a]nd I don’t think I can... grant a challenge for cause .. . . His answers were sufficient that J can’t, in good conscious under the law, grant a challenge for cause.” (RT 1408-09.) However,in ruling on Mr. Ruiz’s peremptory challenge, the court found a race-neutral reason for the challenge based upon Mr. McBrayer’s alleged bias against law enforcement, ignoring his insistence that race would not play a role in any decision while sitting on the jury. Mr. McBrayer was an honest man identifying a reality in America, while offering substantial assurancesthat he could follow the law and his oath. There wasno legitimate race-neutral reason to challenge Mr. McBrayer. This Court should recognize the prosecutor’s efforts for what they were--pre-textual covers for a far more sinister purpose. 54 ARGUMENT X DEATH THREAT AND GANG ASSOCIATION TESTIMONY UNDULY PREJUDICED ROBERT WILLIAMSIN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT Death threats and gang-association testimony were put before thejurors for the sole purposeoftainting Robert as a violent and dangerous man, predisposed to commit the heinous crimes for which he was convicted. The challenge for the prosecutor wasto contrive to put such evidence before the jurors, and the challenge for Respondentsis to defendthetrial court’s acquiescenceto the prosecutor’s efforts to cast Robert in this light. a. Death Threats Respondent contendsthatthe trial court properly admitted Ms. Lofton’s testimony that she received death threats. Respondentfurther argues the alleged death threats impacted her memory and thus explain the remarkable degree of inconsistency in her accounts of the events of July 15, 1995. The trial court admitted Ms. Lofton’s testimonyofthe death threats, stating that “‘a threat made on somebody’s life, no matter who makesit ... that threat does affect one’s ability to recall. It affects one’s ability to think aboutit. I think a death threat has tremendous impact on a witness’s demeanor,ability, especially with the facts that we know.” (RT 2018.) In People v. Green, this Court noted that Evidence Code § 352 requires that the record “affirmatively show that the trial judge did in fact weigh prejudice against probative value”in order“to furnish the appellate courts with the record necessary for meaningful review” and “to ensurethat the ruling on the motion ‘be the productof a mature and careful reflection on the part of the judge.’” (People v Green (1980) 27 Cal.3d 1, 25, overruled on other grounds, quoting Mercer v. Perez (1968) 68 Cal.2d 104, 113.) In Green, a witnesstestified that the murder victim had revealed a conversation with Green during which Green had threatened to kill her. (/d. at 23.) This Court 55 recognized the following: “testimony that a defendant threatened his victim prior to committing the crime chargedis a particularly sensitive form of evidence of the victim’s state of mind.” (/d. at 25.) However, this Court held that admission of the alleged death threats was an error. (/d.) Respondentalso attempts to find support in People v. Burgener (2003) 29 Cal. 4" 833, 869-70, in which this Court found threat evidence relevantto a threatened witness’ credibility. Respondent failed to point out, however, that Burgener himself was the sourceofthe threats. Here the person delivering the alleged threats was never identified and to further distance Robert’s case from Burgener there wasa stipulation that Robert wasnot the source of any alleged threats. As such the probative value of the threat evidence was severely diminished while the prejudicial impact maintained its vicious bite. Here, the admission of death threats alleged by Ms. Lofton was erroneousfor the following five reasons. First, there is no evidence that Robert ever threatened any witness. By stipulation, the Jury was informed that no evidence existed that Robert had threatened Ms. Lofton. The prosecution told the court that “she’s got a lot going on in her head . . . she’s worried about her life too. She feels like a hunted animal. So I will not be attributing these threats to Mr. Williams.” (RT 2016.) The prosecutor’s noble assurancethat he will not attribute the alleged threats to Robert is to completely denyreality. It is only natural that the jurors are going to hang the alleged threats around Robert’s neck the very moment they fell from the prosecutor’s lips. In People v. Terry, the trial court allowed into evidence a telegram sent by the wife of the brother of the defendant’s wife which threatened a witness in order to prevent him from testifying. (People v. Terry (1962) 57 Cal.2d 538.) This Court held the admission of the telegram to be error, and that merely sending the telegram proved nothing asto its authorization, and that its admission into evidence could “do no more than create a conjecture, surmise of suspicion that the act may 56 have, because it could have, been done. Thelife of even the most hardened criminal should not be staked on such flimsy foundation.” (/d. at 556-67.) In keeping with the court’s reasoning, allowing these alleged death threats into evidence only confused the jury on the issues, andtheir possible probative value was greatly outweighed by their plainly prejudicial impact. Robert’s jury was misled into thinking that he was somehowaffiliated with the alleged death threats asit wasthe prosecutor’s claim that the impact of the threats purportedly affected the witness’s ability to testify against Robert athistrial. Second, Respondent maintains that the death threats were admissible to prove Ms. Lofton’s “state of mind” and demeanoras a witness, and to explain the inconsistencies in her testimony. (RT 1944-45, 2016.) It is clear that Ms. Lofton was understandably frightened and traumatized, however, Respondentis alleging that the record makesclear that the inconsistencies in Ms. Lofton’s testimony were subsequentto death threats she allegedly received months affer the nightof the killings, when, in fact, Ms. Lofton’s fear was undoubtedly instilled the very night ofthe killings. Ms. Lofton was molested; her throat was cut; she witnessed the death of her boyfriend andhis father, and the suspects had not yet been detained. Whilesafely in the hospital, she was put on pain medication and admitted to being “confused, dazed...” (CT 108-09.) She stated that she could not rememberher responses to questions asked of herby officials because she was on pain medication. (CT 93.) The very next day after the horrendous events of which she was a part, Ms. Lofton got a gun because she feared for her safety. She subsequently fled, and later went into hiding. (RT 2336.) It was only while she was still in hiding that Ms. Lofton allegedly received the death threats about which shetestified at trial. In short, the alleged death threats had nothing to do with the multitude of inconsistencies in 57 Ms. Lofton’s testimony which occurred well before any alleged threats. The timeline of Ms. Lofton’s changed statements and altered testimony lays this out with ample clarity. Third, it is noteworthy that the inconsistencies and discrepancies in Ms. Lofton’s testimony, which Prosecutor Ruiz and Respondent want to primarily attribute to her fear following the alleged death threats, began the very night of the murders, and well in advance of the defendant being detained or any alleged death threats ever being made. 1, Testimony by Ms. Sonya Jimmons, social worker, on the morning of July 17,1995: At the hospital, Ms. Lofton’s behavior waserratic, including “laughing” with visitors and staff, and not “mood appropriate”or “depressive,” despite claiming she had been raped and witnessed the brutal killing of her boyfriend andhis father. (RT 3066-74.) This behavior was ongoing. (RT3073.) Testimony by Ms. Sonya Jimmons, social worker, on the morning of July 17. 1995: At hospital, she requested a pregnancy test even though she alleged to have been anally penetrated, and at some pointshetestified that the molestation wasa finger penetrating her vagina. (RT 3075.) . Testimony by Ms. Sonya Jimmons, social worker, on the morning of July 17, 1995: Ms. Lofton inaccurately reported that the victims had been shot in the back of the head. (RT 3075.) Testimony by Ms. Sonya Jimmons,social worker, on the morning of July 17, 1995: She reported she was face down on the floor when she was raped. (RT 3075.) Testimony of Officer Kirkendall, July 15, 1998, immediately preceding Lofton’s injuries: Ms. Lofton informed Officer Kirkendall that three men cameinto her house. (RT 1742- 43.) In a taped interview two daysafter the murders, she claimed to have seen only two men exit the car and approach the house that night. (RT 2391-92.) The issue of how many people were involved was further confused by the testimony of a neighbor who recalled four men getting into four different vehicles at the approximate timeof the murders. (RT 2319-20.) While Ms. Lofton claims there was only one car, the burgundy sedan, outside Gary’s house, the neighbor, witness Ms. Michelle Contreras, testified that she also saw a lowered Chevrolet truck at the approximate time of the murders. (RT 2325.) Onthe night of the murders, Ms. Lofton described one of the vehicles at Gary’s house to the officer as a 5.0 Mustang andlater recanted the type of car that was at Gary’s house, stating it was a Cavalier. (RT 2338, 2344-45.) 58 8. During a taped interview by Detective Amicone, two daysafter the murders: Ms. Lofton described Suspect #1, defendant Robert Williams, as 5’7” and 170 pounds. (RT 2469.) Ms. Lofton was asked by Detective Amicone to describe Rob and she responded, “Okay. I was probablytaller than him”. (RT 2469-70.) Robert was 5711 *4” and weighed 275 poundsat the time. (RT 3062.) 9. Ms. Lofton stated that neither Roscoe nor Gary had tape covering their mouths, and she pulled off the plastic bag covering Roscoe’s head before she escaped. (RT 2296.) However, when police investigated the scene, the plastic bag remained covering Roscoe’s head, and both of the victims’ mouths were covered with duct tape. (RT 1886-87,1877, 2296-98, 2300; RT 2298, 2300.) Given the timing of these discrepancies, it becomesclear that any alleged death threats did not serve as the inspiration for Ms. Lofton’s inconsistencies. On the contrary, her inconsistencies can reasonably beattributed to her generalinability to be truthful, admittedly coupled with the undeniably traumatic experience she had just endured. Fourth, the alleged death threats were from an unidentified third person or persons. Let us not forget that Ms. Lofton testified that she was not directly threatened and, as this Court well knows, an alleged threat received by a witness from an unidentified person is not admissible. (People v. Weiss, 50 Cal.2d 535, 553.) In People v. Weiss, this Court foundthetrial judge to haveerred in allowing testimonyof an alleged threat received by the witness via telephone from an unidentified caller. 7d. at 553.) This Court reasoned that “thetrial court [had] no morebasis for assuming that the [unidentified threats], to show the witness had been intimidated, came from an agent of the defendant than from an agent ofthe prosecution.” (People v. Weiss, (1958), 50 Cal.2d at 553.) If the attempt [to suppress witness testimony throughthreat] is made by a third person, not in the presence of the defendant or shown to have been authorized by him, it should at once be suspect as a mere purporting attempt to suppress evidence andin truth an endeavorto prejudice the defendant before the jury ina way which he cannot possibly rebut satisfactorily because he does not know the true identity of the pretender. (Ud. at 554.) 59 These unidentified death threats could very easily be the product of someonewith ulterior motives, such as Scott, for example, who negotiated a deal in return for his testimony against Robert and whohadthe ability to make such communications even though he wasincarcerated. (RT 2571, 2707, 2710-14, 2720.) Scott had “unrestricted accessto [call] other people . . . who [he] would talk to about anything.” (RT 2716-17.) Lastly, Respondent contendsthat it was the alleged death threats from an unidentified third person orpersonsthat impacted her ability to recall accurately. However, contrary to the Respondent’s proposition, Ms. Lofton’s recollection of the night of the murders actually improvedattrial, well after the alleged death threats. For example: 1. Her ability to describe the details of a briefcase carried by one of the suspects as he approached Gary’s home: During a taped interview taken by Detective Amicone, two days after the murders, Ms. Lofton claimed that one of the men coming toward Gary’s house had a black brief case. (RT 2396.) She was unable to describe the briefcase with any specificity because she witnessed it from the upstairs window andit was nighttime. When asked whether she was asked specifics about the briefcase, she answered, “Black.I wasupstairs.” (RT 2397.) Subsequently, at trial she was able to describe the specific dimensionsof the briefcase while using a measuring tape. (RT 2398.) 2. Gun case lying on the street: Wheninitially questioned by police officers, Ms. Lofton did not mention the black gun case onthestreet, a detail she testified to at trial. (RT 2343.) 3. Ms. Lofton recalls seeing defendant in photographs at Gary’s homepriorto killing: Subsequentto death threats, Ms. Lofton informed Detective Thompson of a photograph she saw at Gary’s homeprior to the killing of whom shebelieved to be Suspect #1, the defendant. However, she neglected to mention her suspicion and the identity of defendant to Deputy Kirkendall the night of the murders or to Detective Amicone wheninterviewed at the hospital. She testified at trial that she had never seen Suspect #1 prior to the night of the murders. (RT 2470-74.) Respondent further contendsthat even if the admission of the alleged death threats were prejudicial, such testimony is merely harmlesserror. In People v. Mason, despite the trial court’s attempt to preclude the prejudicial inference by informing the jury that there was no reason to believe that the defendant wasresponsible for such threats, this Court notedthat “the inference 60 persisted, however, that the defendant, himself, had been responsiblefor the threat. (People v. Mason (1991) 52 Cal.3d 909, 946-47 (discussing Weiss).) In Mason, this Court found no prejudice to the accused as there was specific and emphatic disavowal of the defendant’s connection with any threat. (Mason, 52 Cal.3d at 947.) This Court further foundthat “[the threatened witness] expressly testified that the defendant was not connected with the threats in any way.” (d.) The witness whoreceived the death threats “testified five times, unambiguously,that the defendant was not connected with the threats received in any way, directly or indirectly.” (/d.) In the present case, Robert was not afforded such protections by the prosecutoror thetrial court. Ms. Lofton nevertestified that Robert was not connected to the death threats, nor that the death threats might be attributed to someoneelse. Instead, the jury was left with the supposition(or at the very least the option) to suppose that Robert Williams was somehowresponsible for the threats against Ms. Lofton because Ms. Lofton wastestifying against him. Additionally, the jury could hardly overlook the fact that Ms. Lofton was the primary witness for the state, and the sole eyewitness of the murders on the nightof July 15, 1995. There were no other witnesses and no physical evidence linking Robert to the murders.* (RT 2996.) The prosecutor insulated Ms. Lofton, its primary witness, from any meaningful examination as to her credibility and herability to make eyewitness identifications, as well as to her motivation in incriminating Robert. There was no physical or testimonial corroborating evidence to support Ms. Lofton’s account of events. In fact, a neighbor offered a markedly different account of the numberofindividuals, the numberofcars, and the type of cars parked at Gary’s residence on the night of the murders. (RT 2086; RT 1703-21.) Consequently, Ms. * Robert Scott alerted the authorities of an alleged threat to Gary prior to his murder. However, he was not percipient to the events of July 15, 1995. 61 Lofton’s veracity and reliability were issues of central concern throughout the investigation, pretrial, and trial. Any and all alleged death threats, although relevant, are outweighed by prejudice, as they could have been the productofa third suspect, or possibly a fourth, who remains at large. Without more information about such alleged death threats, their introductionat trial was unnecessarily prejudicial. Such evidence presented an opportunity for the prosecutorto taint Robert as a ruthless and violent man in the mindsofthe jury. Thetrial court therefore erred in allowing Ms. Loftonto testify about unidentified death threats that she claimed impacted her memory and were the reason for her dramatically changed testimony. b. Gang Affiliation Evidence of a defendant’s criminal disposition is inadmissible to prove he committed a specific criminal act. (Cal. Evid. Code §1101; see also People v. Ruiz (1998) 62 Cal.App.4th 234, 240. This Court has recognized that “admission of evidence a of criminal defendant’s gang membership creates a risk the jury will improperly infer the defendanthasa criminal disposition and is therefore guilty of the offense charged.” (People v. Williams (1997) 16 Cal.4th 153, 193.) It is well established that evidence of gang association “is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related.” (People v. Samaniego (2009) 172 Cal. App 4th 1148, 1167.) But, it is also well established that gang evidence should not be admitted at trial where the sole purpose for its introduction is to demonstrate a defendant’s criminaldisposition or moral turpitude as a meansofcreating an inference that the defendant committed the charged offense.” (People v. Memory (2010) 182 Cal.App.4th 835, 859 (citing Jn re Wing Y. (1977) 67 Cal.App.3d 69, 79).) Respondent contendsthat no evidence suggesting Williams was a gang memberwasintroducedat trial. (RB 103.) Contrary to Respondent’s contention, the prosecution strategically and successfully communicatedto the jurors Robert’s 62 gang affiliation by referring to him as a “jacker.” First, the jury was informedthat the deceased, Gary, was gangaffiliated. (RT 1711.) The jury was awarethat in addition to robbing banks, Gary wasaffiliated with the Crips gang and had various connections with the Mexican Mafia. (RT 1711.) Someofthe individuals who had committed robberies with Gary were membersof the 60 Crips gang. (RT 1711.) Gary himself claimed to be a memberofthe Palm Oak Crips gang. (RT 1688.) Second, Scott outside the jury’spresence, offeredto testify that he feared Robert because he wasa gangster. (RT 2749.) Aware of the term’s prejudice, the prosecution instructed Scott “not to refer to the defendant being a gang memberor being a gangster,”’ but instead to describe Williamsas a “jacker.” (RT 2748, 2750.) Thetrial court erred in allowing “jacker”to be used as a substitute for the term “gangster,” since the term “jacker” is essentially used to describe a “gangster” or someone with gangaffiliations, and henceis noless likely to carry with it the connotations of a gangster. Note the questions and responses during Scott’s testimony: Q: He said he wanted his share. Well, are you familiar with the term “shake down’? A: Yeah. Q: Okay. Would that be a fair characterization of what Mr. Williams was saying? A: That means — well, to me a shake does meanslike a jack, like. Q: Okay. What’s a jack? A: When somebody comesup to you and pulls a gun on youtelling you he wants your rings or your jewelry or your money,that’s a jack. Q: Had [defendant] ever participated in any jacks with you during this whole, you know, four or five year period? A: No. (RT 2545.) On Cross: Q: Whywere you afraid of this guy, when you and Gary and your--- you guys were bank robbers? You had access to guns. You held up people. Why were youso scared ofthis guy? A: I— man,it don’t take no tough manto rob a bank. I mean, that’s what we wasdoing. We wasn’t --- we wasn’t --- we waslittle old bank robbers. We wasn’t into, you know, going out shooting people, and you know,killing people. We wasn’t intothat. (RT 2747.) . On re-direct: 63 Q: Why were you so scared of this guy? A: Because he was a jacker. He --- he was crazy, you know. Q: Well, you know,there’s people --- there’s crazy people that think they’re Napoleon, people whothink they’re God.Is a jacker--- have you andI talked aboutthis before you testified? A: Yes. Q: J explained to you that there was a limitation on your answer? A: Yes,sir. Q: Okay. When you usethe term “jacker,” do I understand correctly --- have you previously indicated that, in your opinion --- this is just limited to your opinion, not for the matter --- that he was somebody who would justrip off people? A: Hewould jack anybody--- Q: Okay. A: --- for anything. Q: When you use the term “jacker,” do I understand correctly ... that he was someone who wouldjust rip off anybody? A: He would jack anyone — Q: Okay. A: For anything. (RT 2758-59.) Although initially used to describe a robber, the meaning of “jacker’”flourished, and cameto clearly communicate to the jury that defendant was predisposed to commit murder because he was a “gangster.” The meaning of the term wasreadily expanded from referring to a person whorobsothers, to standing as a definition for a person whoisruthless, scandalous, crazy, and will kill anyone. (RT 2749-50.) Third, during closing arguments, the prosecution used the term “gang” numeroustimes to describe the relationship between the deceased and the defendant. (RT 3612-14.) Specifically, the prosecution strategically mentionedthat the killings were a response by Robert when Gary denied Robert entry into his “gang.” (RT 3613.) Furthermore, the prosecution consistently referred to Robert as the “ringleader,” as someone who wasin a position of dominance and had the ability to “control” and force others, against their will, to participate in crimes, including the killings which the prosecution described as “his crime.” (RT 3598, RT 3616, RT 3620, RT 3621, RT 3624, RT 3625, RT 3633.) Such language 64 more than suggests that Robert belonged to a gang in which he wasthe leader, and that he orchestrated this entire criminal venture. The expansion of the meaning of the term “jacker,” coupled with the statements made by prosecution in closing arguments and knowledge ofthe deceased’s gangaffiliation, make clear that Scott was using the term “jacker”in his testimony as a synonym and nota substitute for “gangster.” Lastly, Scott had no personal knowledge of Robert being a “gangster,” a “jacker,” or affiliated with any gangsatall, yet used terms in reference to Robert that, by their proper definition, mean someone whorobsanother with a loaded gun. (RT 2545, 2749-50.) Scott’s testimony was not based on anything he had everseenorrelating to anything about which he had personal knowledge,rather his testimony was based on speculation or hearsay. The trial court erred in allowing the term “jacker” to be used. Such testimonyis highly prejudicial and denied the defendanta fair trial. The Ninth Circuit in Kenny v. Lockyer (9th Cir. 2004) 379F.3d 1041 traced the case holdings that have firmly established that evidence relating to gang involvementwill almost always be prejudicial and will constitute reversibleerror. Evidence of gang membership maynot be introduced ... to prove intentor culpability. In this regard, we have stated that testimony regarding gang membership “creates a risk that the jury will [probably] equate gang membership with the charged crimes.” We further stated that where ... “gang” evidenceis proffered to prove a substantive element ofthe crime (and not for impeachment purposes), it would likely be “unduly prejudicial.” (/d. at 1055-56 (citing Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337, 1342-43 (overruled on other grounds) (reversing the conviction and holding that evidence of membership in a gang cannotserve as proofof intent, because, while someone maybe an “evil person,”that is not enough to make him guilty under California law); see also United States v. Garcia (9th Cir. 1998) 151 F.3d 1243, 1244-46 (reversing the conviction andstating that it would be contrary to 65 the fundamental principles of our justice system to find a defendant guilty on the basis ofhis association with gang members); United States v. Hankey (9th Cir. 2000) 203 F.3d 1160, 1170).) During closing argument, the prosecutor strategically used terminology to characterize the defendant as a gang member, knowingall the while that suggesting suchaffiliation was inadmissible and highly prejudicial. (AOB 165.) The messagethat Robert was agangaffiliate was Clearly communicated to the jury and as a result, its admission was, without question, harmful error. ARGUMENTXI THE TRIAL COURT ERREDIN FAILING TO LIMIT THEJURORS’S USE OF THE DEATH THREAT TESTIMONY Thetrial court compoundedits error in allowing the admission of death-threat evidence by failing to properly distance Robert from that damning evidence. Prior to answering Respondent’s argument, it is important to set forth both the defense’s proposedinstruction and the actual instruction given. PROPOSED INSTRUCTION:“There is no evidence that the defendant Robert Williams wasresponsible for those threats.” (RT 3047 (emphasis added.)) INSTRUCTION GIVEN:“There is no evidence that Robert Williams made a threat to any witness in this case.” (RT 3063 (emphasis added.)) Theinstruction given was limited to discounting whether Robert personally made an alleged threat to Ms. Lofton. In so doing, it could well have left the jurors with the impression that even though Robert did not personally make any threats, he may have beenresponsible for any alleged threats. Being responsible for threats is as damning as actually making thethreats and, in some respects, may be more prejudicial in that it implies that Robert wasin a position to 66 haveothers do his vile deeds. As such, he was implicitly characterized as a threat even though incarcerated. The instruction given provided no insulation to Robert from the allegedthreats, failed to accurately apprise the jurors of the actual evidence produced, and, most significantly, failed to dispel the prejudicial impact of the death-threat evidence. It must be madeclear that there was no evidence produced or even proffered that linked Robert to any threats. Respondentin his brief stated that such evidence did exist. (RB 109.) In reality, no such evidence wasever produced, thus suggesting that Respondent, in makinghis assertion, relied on Prosecutor Ruiz’s unsubstantiated claim that “we do have evidencethat the defendant was involvedin threats...” (RT 3048.) Despite Mr. Ruiz’s comment, nowhere in the lengthy record of this case was any evidence or testimony producedthat in any way linked Robert to any alleged death threats. Respondent attempts to sidestep this issue by asserting that Robert’s counsel’s withdrawal of the request for specific instruction constituted a waiver for the purposes of challengingthe trial court’s failure to give a specific and particularized instructionto the jury. (RB 109-110.) Respondent’s assertion is wholly unsupported by the record. The defense specifically requested the limiting instruction and only withdrew this request following the court’s refusal to give the particularized instruction and the subsequent insistence on stipulation between the prosecution and defense. (RT 3047-49.) Ironically, while the trial judge acknowledged that the defense’s proposed instruction accurately reflected the limited purpose for which the testimony was offered, he believedit “not proper” becausein his view, such an instruction would constitute the court’s comment on the evidence and that would be improper. (RT 3047.) Even if the proposed instruction should be characterized as judicial comment, this Court has consistently held that judicial commentaryis 67 properas long asit is “accurate, temperate, non-argumentative, and scrupulouslyfair.” (People v. Rodriguez (1986) 42 Cal.3d 730, 766.) Dueto the probability that jurors would make false inferences from the death-threat testimony, and because of its acknowledged prejudicial effect, the requested instruction was the minimum necessary to guard against jury misuseofthe testimony. As it was, Robert’s fate was determined by a misinformedjury, violating his Sixth Amendmentright to an impartialjury. ARGUMENTXII JUROR MISCONDUCT DENIED ROBERT WILLIAMS THE RIGHT TO HAVE HIS CASE HEARD BY A COMPETENT JURY IN VIOLATION OF THE SIXTH AMENDMENT Respondent cites four cases from this Court (including three recent rulings) in support of its argumentthat this claim ofjuror misconduct is “forfeit because Williams neither objected to Juror No. 6’s continued service nor requested a mistrial.” (RB 115.) Respondentfailed, however, to note that in all four cases Respondenthas relied upon, there was, correctly, an appropriate level of inquiry bythe trial court intendedto ferret out the surrounding facts of any claimed misconduct prior to the court and counsel taking further action. With this in mind, Appellant contends that it is nothing less than a court’s duty to intercede on behalf of a defendant when juror misconductis suspected, and furtherthat it is the court’s duty to instantly suspend proceedings to makea careful inquiry into the matter. Appellant addressesall four cases in turn. Such inquiry results in the findingthat in all four instances, the trial courts undertook the task of confronting instances of potential misconduct. In the first case, People v. Lewis (2009) 46 Cal.4th 1255, thetrial court, upon learning of the existence of potential misconduct, undertook to investigate the claimed misconduct, and only after carefully considering the inquiry and determining the absenceof any basis for the claim, did 68 the court proceed withtrial. (Lewis, 46 Cal.4th at 1305-08.) To reflect further, the Lewis trial court, upon notification that a juror conversed with her husband during guilt phase deliberations, undertook inquiry as to the content and extent of the purported conversation. Such careful inquiry was necessary as clandestine communications, contact, or for that matter any direct or indirect interference with a juror duringa trial is, of course, presumptively prejudicial. While such a presumptionis not conclusive, nonetheless a weighty burden rests upon the governmentto unfailingly establish that such contact with the juror was ultimately harmless to the defendant. (Remmer v. United States (1954) 347 U.S. 227, 229.) It is misconduct for jurors to communicate with other parties associated with the case. (See Pen. Code, sec. 1122; People v. Jones (1998) 17 Cal.4th 279, 310; see also People v. Stewart (2004) 33 Cal.4th 425, 510 Lewis’s counsel only agreed to continue the juror’s service and not seek a mistrial after receiving assurancesby the court that investigations had led the court to deem that no misconduct had occurred. In contrast with Lewis, resolution of concerns with Juror No. 6 in Robert’s trial did not prompt the court’s participation in even the most minimalcapacity. In Robert’s case, the potential identification ofjuror misconduct did not give rise to any effort beyondthe court’s at best superficial self-inquiry as to its observations of Juror No. 6, with the judge makingclear, “I haven’t been—obviously haven’t been watching them asclose as [the spectator] has.” (19 RT 2755.) Admitting that he had not been scrutinizing jury conduct in general, the judge then took to do no more than urge defense counsel and defendantalike to waive “{a]ny issue of whether [Juror No. 6] was asleep or not .. .” and to “waive any defect or prejudice,if, in fact, he was dozing off?” (RPT 2755-56.) With the court’s admission that it did not know one wayor another whether Juror No.6 had beenasleep, and with its decision not to investigate further but to press counsel and defendant to concede to join the court in skirting the 69 issue, this matter was, to say the least, hardly approachingthelevel of inquiry undertaken in Lewis. In retelling the details of Lewis, Respondent selectively omits the court’s efforts to inquire about Juror No. 9 which in that case were substantial: There was, initially, a discussion between the prosecutor and an investigator at the Riverside District Attorney’s office, the District Attorney having been informedby the juror’s husbandofthe scope of his conversation with his wife relating to the trial. The prosecutor subsequently notified the court of the juror’s conversation with her husband; the prosecutor then requested a hearing to fully address the concern; the court held a hearing to examine the matter, and to determine whetheror not there was any substantive discussion of the jury deliberations between Juror No. 9 and her husband, and hence evidenceof actual juror misconduct. Thetrial court subsequently and carefully considered whether an admonitionto the jury would be suitable recourse in this case; the court then madefurther effort to scrutinize this issue, requesting that Juror No. 9 comeinto court in order to respond to such specific questioning as deemed necessary to determine whetheror not she could continue: “The trial court proposed to have Juror No. 9 comeinto court, and to ‘simply ask her if she has any problems or feels that she can befair to both sides to continue in the case.’” (Lewis, 46 Cal.4th at 1307.) Indeed, the juror was broughtbeforethetrial judge and ultimately questioned in somedetail before the court and counsel for both the State and defendant, and it was ultimately agreed that Juror No. 9 wasfit to continue deliberations. The Court also concluded that because counsel did not object, the claim was waived. The degree ofjudicial scrutiny in Lewis is far removed from the entirely absent time and effort Robert’s trial judge undertook during Robert’s trial. For Respondent to claim that there has beenforfeiture of a claim ofjuror misconduct because counsel and defendant agreed to waive 70 claims of defect or prejudicein the absenceofdiligent judicial inquiry in no way parallels the standards Respondent invokes by way of the Lewis decision.It is difficult to make an informed decision to object without being fully apprised of the concern. Withoutsufficient inquiry, Robert and his counsel were in the dark asto the true extent of the problem. While defense counsel, the prosecutor and Robert certainly acquiesced to waiving on this issue, the record makes apparent that the judge had nointention of undertaking reasonable inquiry. Correspondingly,this acquiescence demonstrates only evidence of Robert’s desire to movealonga trial that he thought by this late stage would never cometo pass. Appellant thereby asserts that any such waiver as Respondentclaims does not extend to exonerate this judge from the court’s obligation to probe the trial spectator’s disturbing observations that had been brought to its attention. Unlike the uncertainty and trepidation with which Juror No. 9’s husband approached the prosecutor in Lewis, the spectator in Robert’s trial emphatically alerted the judge to what could hardly have been a more adamantor certain opinion relating to what she had observed in Juror No. 6: “He’s been—a couple of times when he was nodding off, he was actually asleep.” Further, she confirmed her belief that the juror “nodded off” and was “actually asleep.” (RT 2753.) And,if the trial court did not feel sufficiently persuaded to warrant further investigation the claims of a single spectator’s observations of a juror sleeping during capitaltrial, then Appellant is only further bewildered as to why the court did not take up the matter with some vigor when the spectatoralerted the judge to the fact that he wasnot alone in witnessing what had transpired: “I’m not the only spectator who hasnoticed. I just really don’t think it’s fair to the defense or the prosecutor’s case. I really don’t thinkthatis fair.” (19 RT 2753-2754.) The court decided that in serving the defendant’s right to a competentjury,it stil] need make no inquiry, even when confronted with a second spectator. Whether or not Robert or counsel 71 followed up with this second observer, (something Respondent further argues to be the basis for the defendant’s full and knowing waiver), it is Appellant’s position that inadequate investigation of this growing concern ultimately flowed from the judge whenhefailedto halt the trial and probe further in order to determine the potential harm that might befall Robert’s right to a fair and competentjury. Respondent next turns to People v. Foster (2010) 50 Cal.4th 1301 , wherethetrial court, in contrast with Robert’s trial, once more undertook a thorough investigation of potential juror misconductafter a juror indicated a third party had contacted him.Asa result ofits diligent investigation and inquiry into the matter, the trial court found no basis for misconduct, and consequently continued with the trial. (Foster, 50 Cal.4th at 1339-43.) As discussed in relation to Respondent’s invocation of Lewis, the Foster court presents notable distinction when proffered in support of Appellant’s concerns over Juror No. 6’s misconduct.First ofall, once Juror No. 9 in Foster notified the court of his contact with a third party (via his receipt during trial of notes left by a friend on the windshield of his car), the court undertook a formal hearing in orderto inquire as to how grave a concern receipt of these notes might present. (/d.at 1339.) However, to do justice to the extent of the inquiry taken up by the court and concerning potential juror misconduct, Appellant feels it necessary to provide a rather more complete picture of the steps the Foster court undertook with its inquiry. Satisfied that Juror No. 9 felt he could continue in his position on the panel, the court wasstill not satisfied, and exhibited further concern with Juror No. 9’s revelation that he had disclosed receipt of the notes to Juror No. 12. The court then proceeded to have Juror No.12 brought before counselin orderto fully ascertain that Juror No.12 did not feel his ability to be fair and impartial had been compromised. When Juror No. 12 confirmed as much, the court still admonished him notto speakto any other jurors, and he 72 readily agreed to this instruction. (/d. at 1340.) However, even when Juror No.12 admitted he could proceed, the court still did not stop probing the possibility of future potential juror misconduct, and now undertook inquiry of the entire jury panel. (/d.) It bears noticing, that the degree to whichthe court in Robert’s trial avoided entirely any sort of meaningful inquiry of Juror No.6, let along the entire jury panel, rests in stark contrast with the scrutiny the Foster court applied in orderto insure a fair and competentjury. While the spectator originating the concern over Juror No. 6’s misconduct in Robert’s trial was heard by trial counsel and the court, the second spectatoridentified as also having witnessed the sleeping juror was never questioned, not even in the most cursory manner. Further, Juror No. 6 was never held to account for his misconductin front of any sort of formaltribunal, nor, unlike the Foster court, were the remaining jurors in Robert’s capitaltrial asked to confirm or negate the concernsraised by the two spectators. Thistrial judge’s sweeping declaration thatit did not want to “embarrass” jurors by probing deeply into the matter is a painfully deficient approach. While Robert’s trial judge did agree to grant a general admonition to the jury and delegate to the court’s deputy the duty of insuring the jury remainalert, such prophylactic measuresdid not, in Appellant’s estimation, come even close to what Respondentintroduces by way of the Lewis or Foster courts’ recognition and diligent handling of suspected juror misconduct. (19 RT 2755.) To recollect, but not restate, Appellant’s comprehensive discussion of the issues raised by sleeping jurors in his opening brief, Appellant would only remind Respondentat this juncture that the inattentiveness of Juror No. 6 occurred during the cross- examination of Mr. Scott, a key witnessin this capital case. Respondent cannotdisregard the Ninth Circuit’s clear position that “in failing to conduct a hearing or make any investigation into the ‘sleeping’ juror question,the trial judge abused his considerable discretionin this area.” 73 (United States v. Barrett (9"" Cire. 1983) 703 F.2d 1076, 1083.) The absence in Robert’s trial of any formal process of review cannotbe excused, regardless of Respondent’s pointing the finger of blameat defense counsel and defendant’s agreement to move forward with thetrial. Sweeping jury misconduct underthe rug with a general admonition to the jury as a wholeis undeniably deficient and is to deny Robert his constitutional right to a competent jury. This procedure of halting proceedings and carefully reviewing concernsrelating to juror misconduct before resuming trial was adhered to in People v. Stanley (2006) 39 Cal.4th 913, the third case Respondentrelies upon. After determining that no juror misconduct existed, Respondentcorrectly asserts that the court allowed trial proceedings to resume. (Stanley, 39 Cal.4th at 946-51.) However, to give no credit to the court’s attentive approachto potential juror misconduct in Stanley is to ignore the events that transpired when it was discovered that Juror C had one morning read a newspaperstory that reported opening statementsfor the defense and prosecution. Unlike Robert’s trial, the Stanley trial judge undertook a period of careful and appropriately inquisitive inquiry of Juror C, specifically seeking the following information: Whether he had in fact read the paper; whetheror not the juror recalled the article as making any allegations relating to the defendant’s prior convictions (uponthis issue the court questioned the juror several times); the court then permitted defense counselto question the juror; the juror was asked whetherhe recalled any reference in the article to a discussion ofthe racial composition of the jury; he was asked whether reading the newspaperarticle might have affected him in any mannerat all, and, finally, counsel asked whether the juror had read the newspaper article more than once. Upon completion of defense counsel’s line of questioning, the court then returned to its own questioning. The court asked Juror C whetherhis reading ofthe article might affect his ability to serve as an impartial witness, and whether he couldstill sit with the jury and “call it the 74 wayit is.” (id. 949.) Only after this final admonishmentto the entire jury, did the court resume trial: “I want to caution you now please don't read those newspaperarticles because what we want youto do is to decide this case only on what you hear in the courtroom ...." (/d. at 950.) Atall times, the Stanley court’s inquiry of Juror C wasintendedto probe the potential influence the newspaperarticle might have had upon his ability to diligently serve for the remainderofthetrial. The court and counsel asked questions of Juror C that allowed them to determine, with more than sufficient certainty, that the court was proceedingin all fairness to the defendant, andthat the rebuttable presumption ofprejudice to the continuing proceedings had been satisfied. While the court inquired of Juror C whetherhe, “could still sit here andlistento it and call it the way youseeit ...,” such an inquiry was not made of Juror No. 6 in Robert’s trial, even though this wasajuror identified to the court by two disinterested spectators as someone who might have already missedlistening to critical witness testimony.(Id. at 949.) Juror No.6 wasnever confirmed by the judge as being in a positionto satisfy the most fundamentalduties during this trial, and it defies commonsense how a juror who might have been sleeping when he should have been awake, let alone alert, could ever be counted upon during deliberations. This was hardly someonethe Stanley court would have even remotely held to be able to “call it the way you seeit.” Ifthe judge in Robert’s trial did not believe Juror No. 6 was sleeping, two spectators certainly believed that this juror had neither heard nor seen anything during what has been identified as key witness cross-examination testimony. The judge, accordingly, moved on with Robert’s trial, without even minimaldirect inquiry of Juror No. 6’s potential misconduct. Appellant thereby does not concede that the waiver principle applies, given that the court did not fulfill even a minimal degreeofjudicial inquiry, evaluation,or, if necessary, mitigation resulting from juror misconduct. Without inquiry that reaches even the periphery of what was undertaken 75 in Respondent’s citation to the Lewis, Foster or Stanley courts, the above-referencedtrio of cases serve, ultimately, to firmly situate Robert’s trial in stark contrast with Respondent’s highlighting of tried-and-tested formulas by which courts might address juror misconduct. What Lewis, Foster and Stanley in turn do underscoreis the manner in which Robert’s court ventured so far away from what Respondent has put forth. Appellant hereby supports wholeheartedly Respondent’s invocation of these cases as a lens through which to now assessthe level of judicial inquiry undertaken by these three courts when confronting claims ofjuror misconduct. To suggest they bolster Respondent’s allegation that Robert and his counsel forfeited their claim ofjuror misconductis to posit a reading of Lewis, Foster and Stanley that simply does not exist. To further underscore the court’s mishandling of potential juror misconduct in Robert’s trial, instead of making even the most modest inquiry of Juror No. 6 or any otherjurors, the Judge, instead, remarkably attempted to joke, when it quipped, “[m]aybethatis a clue to the lawyers that maybe they ought to be moreinteresting,” and “I just caution you that sometimes trials get a little bit boring. Maybe you might have noticed. And I’m being very generous now.” (RPT 2754; RPT 2757.) In the throes of trying a capital case, this judge suggested it was counsel’s inability to proffer entertaining rhetoric that was the likely cause for the disengaged and perhaps sleeping juror. Such quips and banter have no placein any trial, least of all during the somber undertakings of a capital case, one ultimately rendering such a devastating outcome for this defendant. Respondent, in defending the court’s actions, next relies on this Court’s decision in People v. Espinoza (1992) 3 Cal.4th 806, which states that an inquiry is necessary only where there is “good cause”to doubta juror’s ability to perform his duties. In Espinoza, the alleged misconduct was “defense counsel speculation that a juror might have been sleeping...” and 76 resulted in the court finding that existence ofjuror misconduct was“insufficient to apprise the trial court that good causeto discharge might exist,” and hence “did not obligate the court to conduct any further inquiry.” (Espinoza, 3 Cal.4th at 821.) However, this Court cites its then recent opinion in People v. DeSantis (1992) 2 Cal.4” 1198, to enunciate the following: “We have recently explained, however, that the mere suggestion ofjuror ‘inattention’ does not require a formal hearing disruptingthetrial of a case. (People v. DeSantis (1992) 2 Cal.4" 1198, going on to clarify, “[o]ncea trial court is put on notice that good causeto dischargea juror mayexist, it is the court's duty ‘to make whatever inquiry is reasonably necessary’ to determine whetherthe juror should be discharged.” (People v. Burgener (1986) 41 Cal.3d 505, 520) Counsel’s speculation in Espinoza is thereby far different from the actual observation by two uninterested persons in Robert’s trial, individuals who reported their goodfaith belief that a juror wasactually asleep. Under Espinoza, surely, then, Respondent in hindsight concedesthat such “good cause” and “doubt” in Juror No. 6’s “ability to perform his duties” were sufficiently present in Robert’s trial in order to trigger judicial inquiry. There was no speculation here, and hence Respondent’s efforts to deny that these two spectators’ observations warranted pause for thought equivalentto the inquiry undertaken in both the Espinoza and Burgenercourts,is illogical at best. Regrettably, these spectators demonstrated greater concern than Robert’s trial Judge that this capital trial proceed in a fair and competent manner, instead ofthe court so readily brushingoff their reports ofjuror misconduct as not worthy ofits time. Espinozafails to support Respondent’s argumentthat the judge’s decision in Robert’s trial to offer a quip, get a waiver, and move on demonstrated sound judgment. As with most other appellate issues, whether an issue ofjuror misconductcan beraised, and precisely how suchanissueis raised on direct appeal, depends substantially on what 77 transpiredat the trial court level. Juror misconductleads to a presumption that the defendant was prejudiced, thereby potentially establishing juror bias. (Nes/ler, supra, 16 Cal.4th at p. 578; People v. Marshall (1990) 50 Cal.3d 907, 949-951; Carpenter, supra, 9 Cal.4th at pp. 650-655.) However, “[t]he presumption may be rebutted by proofthat no prejudice actually resulted.” (People v. Cooper (1991) 53 Cal.3d 771, 835; Hitchings, supra, 6 Cal.4th at p. 118.) Ultimately, whether prej udice arose from juror misconductis a question that at once invokesscrutiny of both law andfact, and is subject to an appellate court’s independent determination. (Carpenter, supra, at pp. 658-659; Nesler, supra, at p. 582.) Whether an individual verdict must be overturned for jury misconduct further depends uponthe type of misconduct. Asidentified in Appellant’s discussion of Foster, in cases involving the possible prejudice stemming from a juror’s receipt of extraneous materials, or whenthere is juror exposure to information outside the court as seen in Stanley, when the presumption of prejudice is rebutted, the verdict will not be disturbed. Such verdicts will standif the entire record, including the nature of the purported misconduct and the surrounding circumstances, indicate that there is no substantial likelihood that one or more jurors were actually biased against the defendantasa result of such claimed misconduct. (In re Hamilton, supra, 20 Cal.4th at p. 296; People v. Harris (2008) 43 Cal.4th 1269, 1303.) The strength of the evidence against the defendantis a factor to be considered. (Carpenter, supra, 9 Cal.4th at p. 654.) To conclude, then, Respondent hasoffered up that “[t]he record offers nothing to suggestthat anything subsequently occurred which would tend to prove that Juror No. 6 was sleeping andnotfulfilling his duty to listen.” (RB 116.) Indeed, on this point Respondentis correct. The record offers nothing because the court chose not to determine whether such proof existed, and the record similarly offers nothing on accountofthe fact that the court failed to grant Robert diligent 78 inquiry into that which two spectators raised as potentially affecting his constitutional rightto a competent jury. If, as Respondentasserts, the record “offers nothing” in support of possible juror misconduct,this is also only because this judge, after making a joke out of such serious allegations, sought immediately to obtain a waiver from the defendant and counsel in order to keep the trial moving along. In so doing, the court neglected what Appellantstrongly suggests wasan independent dutyto halt the proceedings, inquire further of the two spectators, question Juror No. 6, question the other jurors, allow counsel to question the spectators and jurors, and only then make a reasoned decision on this issue. Heaping such risk upon a capital defendantas continuing with trial when such an unresolved matter as a sleeping juror remained intact, is demonstrative of a profound violation of Robert’s Sixth Amendmentright to an impartial and competent jury. ARGUMENTXIII THE PROCESUTOR’S PATTERN OF CONDUCT INFECTED THE PRETRIAL AND TRIAL WITH SUCH UNFAIRNESS AS TO RENDER ROBERT WILLIAMS’ CONVICTION AND DEATH SENTENCE A DENIAL OF DUE PROCESS This Court noted in People v. Sup. Ct. ofContra Coast County (1977) 19 Cal. 3d 255, 264-65 (superseded on other grounds) that“[i]ndividual instances of unfairness, although they may not separately achieve constitutional dimension, might well cumulate and renderthe entire proceeding constitutionally invalid.” Respondent has opted to ignore the larger scope of Prosecutor Ruiz’s failures in his duty as the “guardian of the defendant’s constitutional rights” and instead has dealt with each concern piecemeal and thereby avoided the cumulative and consequently prejudicial impact of Mr. Ruiz’s failures. (People v. Sherrick (1993) 19 Cal. App. 79 4" 657, 660.) Such strategy, while understandable, doesnot fairly address the larger issue of whether the prosecutor’s conduct taken as a whole served to deny Robert fairtrial. Respondent characterized Appellant’s assertion that Mr. Ruiz viewed discovery as “trench warfare” as nothing more than a “generalized assertion.” (RB 119.) That “generalized assertion”wasdetailed in Arguments I though V in Appellant’s Opening Brief and comprised some seventy-eight pages. Robert invites this Court to view those argumentsin their own right, and also in termsoftheir value in evidencinga part of the consistent pattern of misconduct by Prosecutor Ruiz. Denial of access to Ms. Lofton, which prevented Robert’s counseleffectively confronting the most important prosecution witness, in addition to being a stand-alone constitutional violation, was a harbingerofthe prosecutor’s efforts to gain a death conviction at the expense of Robert’s right to a fairtrial. In addition to brushing aside the multiple discovery failures of Prosecutor Ruiz, Respondentis dismissive of Mr. Ruiz’s ex parte communication with the appointing judge regarding appointment of defense counsel for co-defendant Walker. And while Respondentis literally correct that Mr. Ruiz’s meddling directly involved the co-defendant and not Robert, it was symptomatic of his conduct throughout the eighty-three-month process, whichfailed to respect the duties and obligations prosecutors oweto the accused. Respondentis also dismissive of Mr. Ruiz’s conduct in withholding information that directly impacted the Public Defender’s continued representation of Robert. To beclear, the “disclosure” occurred in April, 1998, three years into the Public Defender’s representation of Robert, and resulted in the Public Defender’s conflict from the case, which wasa significant contributing factor in elongating the eighty-three-month pretrial. Respondent attempts to shrug 80 off Mr. Ruiz’s conductbyasserting that there was insufficient support in the record to implicate Mr. Ruiz. Yet the record suggests otherwise. A Public Defender supervisor disclosed in camera: I do believe the Court should be aware thatthis conflict comes asa result,at least, of information that we received recentlyfrom the prosecution. Information we felt should have been provided much earlier in this case. And had that been provided, we would notbe at the junction we are now,a conflict at this late stage in the case. (RPT 879.) Respondentis correct in that the precise nature of the disclosure wasnotput on the record, butit is not difficult to discern whattranspired, given the timingofthe disclosure, the Public Defender’s explanation, and the Public Defender’s immediate conflict from the case. To suggest that the record does not support Mr. Ruiz’s withholding of information which significantly compromised and delayed Robert’s trial is to turn a blindeyeto the facts. Prosecutor Ruiz’s complicity in the revocation of Robert’s Faretta status has been clearly documented in Appellant’s OpeningBrief. In an ironic twist, it was Mr. Ruiz, not Robert, who accounted for the delays during the ten-month Faretta period.It is of interest that Respondent characterized Appellant’s argument on this point as “the prosecutoract[ing] despicably”in his role in terminating Robert’s self-representation. Nowhere in Appellant’s argument onthis point does the word despicably appear. It appears Respondentbelieves that by using such powerful language, the error will somehow be mitigated by comparison. Frankly, given the deceptive conduct and disingenuous argumentoffered by Prosecutor Ruiz in forcefully arguing for termination of Robert’s self-representation, perhaps despicable would indeed have been the more appropriate word. Prosecutor Ruiz,as do all prosecutors, carries the heavy mantle of authority and thus in making representations to a court or jury must befair and accurate. Yet on the two occasionsset 81 forth in this argument, Mr. Ruiz maderepresentations that were neither fair nor accurate. In the first, he represented, based ontapeshe hadlistened to, that Robert was with Walker on the night of the murders. The tapes, however, only hadthe following statement: “I was with Rob that night.” (RPT 1232.) As Robert himself pointed out, there were several different “Robs”that surfaced during the course of the investigation. Mr. Ruiz couldcertainly infer from the comment that the “Rob” reference was to Robert, but to makethat inferential jump without qualification was misleading. Respondentattempts to discount any concern by explaining that since the judge hadalso listened to the tape, no harm occurred. Respondent’s assertion misses the larger concern that this prosecutor engagedin careless and misleading conduct without regard for his special role as the “guardian of [Robert's] constitutional rights.” Mr. Ruiz’s second misrepresentation, regarding the clothing and test results, was dismissed by Respondent with the claim that “the prosecution corrected the record on that point at the next court hearing.” (RB 122.) The prosecutor made misrepresentations that Robert’s clothes were bloody andthat the clothes had not been tested. He was wrong on both points, and his attempts to explain his misrepresentations, as set forth in Appellant’s Opening Brief at page 188-89, offered no cover but only deepened the misrepresentations. The last of Prosecutor Ruiz’s acts of misconduct that have s0 far cometo light involved his failure to disclosein a timely mannerthethird-party culpability evidence and then, once turned over, successfully urging the court to deny the defense sufficient time to assess and investigate the late-arriving materials. In this last and perhaps most grievous act of misconduct, Prosecutor Ruiz only admitted to possession of the materials when they were inadvertently — discovered by the defense. These materials provided a viable basis for a third-party defense but were effectively excluded from thetrial. 82 Prosecutor Ruiz took advantage of his powerful position systematically to deny Robert a fair trial through series of unethical and biased actions. The cumulative effect rendered Robert’s capital trial constitutionally invalid and the verdict and sentence unreliable. ARGUMENTXIV CUMULATIVE ERROR AT THE GUILT PHASE REQUIRES REVERSAL OF ROBERT WILLIAMS’ CONVICTION Respondent claimsthat no error occurred during the complicated and contentiousguilt phase. Consequently, he did not respond to Robert’s claim that the cumulative effect of the guilt- phaseerrors requires reversal and a newtrial, instead reiterating his position that no errors occurred and, even if they did, they were harmless. Given the quantity and quality of the guilt-phase errors, Respondent’s cavalier response is remarkable. The litany of errors committed by the trial court and prosecutor wreaked havoc on the eighty-three-monthpretrial as well as on thetrial itself. The eighty-three-month delay effectively cost Robert his right to a speedy andfair trial and was primarily dueto the prosecutor’s discovery gamesmanship andthe court’s failure to sever Robert’s case from the co- defendant until well past any point of reason. And while a specific showing of prejudice is not essential to finding a denial of speedytrial there were at least two instancesof actual prejudice, specifically any meaningful investigation in to the third parties motivated to kill Gary Williams wasirrevocably compromised andthe nearly seven year delay witnessed the striking metamorphosis of Conya Lofton’s testimony from a mass of contradictionsinto a certitude that served the state’s case well. Furthermore, Prosecutor Ruiz’s successful efforts to insulate the State’s primary witness from investigation and effective cross-examination, as well as his 83 withholding of crucial information of third parties motivated to kill Gary Williams,effectively precluded any defense chances of mounting a viable defense. Additionally, the court erred in failing to recognize that Prosecutor Ruiz “stacked the deck” by successfully moving to excuse two prospective African-American jurors, even though neither expressed views regarding capital punishment which would have prevented or substantially impaired the performance of their duties. This error was compounded whenthe court failed to check the prosecutor from preemptively challenging three other African-American prospective jurors. Compounding the litany of consequential and prejudicial errors was the court’s ruling allowing death-threat testimony and gang-affiliation evidence, which severely prejudiced Robert before his jurors. And,finally, the trial court’s unwarranted revocation of Robert’s right to self- representation—notleast at the urging of a prosecutor who wasresponsible for the very delay that was used as a pretext for the revocation—dramatically altered the course ofthe pretrial and trial. The cumulative impact of these guilt-phase errors intensified the harm resulting from each separate error. The sorry recordofthis pretrial andtrial cannot be said to have provided Robert with fair trial. As a result reversal is required. 84 PENALTY PHASE ARGUMENT XV JUROR #1 WAS IMPROPERLY EXCUSED, DEPRIVING ROBERT WILLIAMS HIS RIGHT TO A COMPETENT, IMPARTIAL JURY AND DUE PROCESSIN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS Asthis Court emphasized in People v. Barnwell (2007) 41 Cal.4" 1038, “removing a juroris, of course, a serious matter, implicating the constitutional protection defendant invokes,” and for which “a hearing is required.” (Jd. at 1051-52.) The seriousness of the matter is only exacerbated in a capital case: “The use of a single jury may help insure that the ultimate decision makerin the capital case acts with full recognition ofthe gravity of its responsibility throughout both phasesofthetrial, and will also guarantee that the penalty phase jury is aware of lingering doubts that may have survived the guilt phase deliberations.” People v. Nicolaus (1991) 54 Cal.3d at 572 (citing People v. Fields (1983) 35 Cal.3d 329, 352.) Respondentrelies on People v. Leonard (2007) 40 Cal.4" 1370 and People v. Ashmus (1991) 54 Cal.3d 932, to support the trial court’s decision in discharging Juror #1. In both Leonard and Ashmus, close family members had suddenly died. The Ashmus juror was affected by the “unexpected death of his mother” while in Leonard, the juror’s wife reported that her father had been killed in an automobile accident, and that she and her husband would be attending the funeral and be unavailable for a week. In both cases, it was immediately certain that the jurors would be unavailable for a number of days. The sudden deathsin these two cases removed any doubtas to the jurors’ unavailability. Likewise, in the cases set forth in Appellant’s Opening Brief, there were demonstrable and unambiguouscircumstances before the varioustrial judges that rendered the decisionto discharge unassailable. In People v. Sanders (1995) 11 Cal.4" 475, a juror collapsed in court and 85 required emergency medical treatment from paramedics. The paramedics informedthe court that the juror’s condition was due to high blood pressure and the correspondingstress that is inherent in a long and arduoustrial. In People v. Farnam (2002) 28 Cal.4™ 107, the court discharged four female jurors, one of whom wasattacked in the presence of the others. Prior to discharging the jurors, the judge held two separate hearings in whichall the jurors were questioned by court and counsel to determineif the attack wouldaffect their ability to continue to serve as jurors. And, in People v. Barnwell (2007) 41 Cal.41038,this Court foundnoerrorin thetrial court’s discharge of a juror who refused to follow the court’s instructions during deliberation due to his expressed “disbelief of police officer testimony.” (/d. at 1051-54.) In Sanders, Farnam, and Barnwell, as well as the two cases cited by Respondent, thetrial courts, prior to making the serious decision to discharge a juror, did so with the benefit of having a full and complete understandingofthe circumstances before them. The discharge decisions in all five cases involved careful and thoughtful consideration. In contrast, the record herefails to establish a “demonstrablereality,” with its absence of thoughtful consideration leading to the erroneous discharge of Juror #1. Following Juror #1’s call to the court’s clerk reporting that the juror may need hospitalization depending onthe results of an exam to take place the following day, the judge wasat a loss-- “We don’t know howbadit is. And we don’t have the doctor’s report.” Further, the record reflects the court’s impatience: “{H]e’s not here today ... he won’t be here tomorrow. And weanticipated--told the jury we were going to get done tomorrow.” (RT 3496-98.) Would waiting an additional day, especially in a death penalty case, in order to ascertain the extent of Juror #1’s condition not have been prudent under these circumstances? Hadthe court observed the juror’s condition, heard testimony from the other jurors, perhaps had the bailiff confirm the juror’s condition, received a doctor’s report, or spoken to the doctoror to 86 the juror personally and inquired if he might be able to get around on crutches or in a wheelchair, Juror #1’s excusal might not have been an error. The record, however, is devoid of any such inquiry ever having been undertaken. The trial judge made his decision without knowing what he needed to know orasking what he neededto ask. Recollecting his similarly hasty decision regarding dismissing the allegations that Juror No.6 had beensleeping, the judge failed here to once more recognize the seriousnessofthe issue with which he was confronted, and, as a result, exercised poor judgment at Robert’s expense. Robert was deprivedofthe input of a juror who hadbeena part ofthe guilt phase deliberations, who might have had somelingering doubt about Robert’s involvement that may have affected the penalty deliberations. ARGUMENT XVI THE COURT FAILED TO PROPERLY INSTRUCT ON THE STANDARD OF PROOF PRIOR TO IMPOSING THE DEATH PENALTY Appellant recognizes that “CALJIC No. 8.88 has been held by this Court to be constitutionally sufficient in providing guidanceto the jury on the weighing of aggravating and mitigating factors.” (People v. Howard (2010) 51 Cal.4" 15, 39.) However, perhapsit will be Robert’s case that causes the Court to reconsiderits position and recognize that, with a matter of - this import, the term “persuaded”does not provide sufficient guidance to a jury, nor doesit adequately acknowledge the gravity of the question being considered. It seems incongruousthat in a shoplifting case the jurors must be convinced beyond a reasonable doubt of the accused’s guilt, and yet in considering the question oflife or death the standardis that they simply be “persuaded.” Beyond that whichis set forth in Appellant’s Opening Brief, he has nothing further to add on this issue. 87 ARGUMENTXVII DUE PROCESS OF LAW NOW FORBIDS THE IRREVOCABLE PENALTY OF DEATH TO BE IMPOSED UNLESS GUILT IS FOUND BEYOND ALL DOUBT Appellantreiterates his argument from the Opening Brief that the Eighth Amendmentto the United States Constitution prohibits affirmation of a death sentence unless guilt is proven beyondall doubt. As set forth in Appellant’s OpeningBrief, it is beyond all doubt that innocent peopleare routinely sentenced to death, and the Eighth Amendmentrequires that we translate that knowledgeinto the appropriate burden ofproof in cases where deathis a potential outcome. Apart from that set forth in his Opening Brief, appellant has nothing further to add to this issue. ARGUMENTXVIII CALIFORNIA’S DEATH PENALITY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT ROBERT WILLIAMS’ TRIAL, VIOLATES THE UNITED STATES CONSTITUTION Robert reiterates his position that many features of California’s capital sentencing scheme, alone or in combination with each other, violate the United States Constitution. Apart from that previously set forth in the Opening Brief, he has nothing further to add to this issue. ARGUMENTXIX ROBERT WILLIAMS’ DEATH PENALTYIS INVALID BECAUSEIT PROVIDES NO MEANINGFUL BASIS FOR CHOOSING THOSE WHO ARE ELIGIBLE FOR DEATH Robert reiterates his position that California’s death penalty law fails to provide a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in whichit is not. Apart from that previously set forth in the Opening Brief, he has nothing further to add to this issue. 88 ARGUMENT XX ROBERT WILLIAMS’ DEATH PENALTY SENTENCEIS INVALID BECAUSE IT ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION Robert reiterates that § 190.3 (a) violates the Fifth, Sixth, Eighth, and Fourteenth Amendmentsin that it has been applied in such a random and meaningless mannerthat almost all features of every murder have been characterized by prosecutors as “aggravating” within the statute’s meaning. Apart from that previously set forth in the Opening Brief, he has nothing further to add to this issue. ARGUMENTXXI CALIFORNIA’S DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDS TO AVOID ARBITRARY AND CAPRICIOUS SENTENCING AND DEPRIVES DEFENDANTS OF THE RIGHT OT A JURY DETERMINATION OF EACH FACTUAL PREPREQUISITE TO A SENTENCE OF DEATH IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION Robert reiterates that California’s death penalty statute does nothing to narrow the pool of murderers to the most deserving ofdeath in eitherits “special circumstances”section (§ 190.2), or in its sentencing guidelines (§ 190.3). Apart from that previously set forth in the Opening Brief, he has nothing further to addto this issue. ARGUMENT XXII THE CALIFORNIA SENTENCING SCHEME VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FEDERAL CONSITUTION BY DENYING PROCEDURAL SAFEGUARDS TO CAPITAL DEFENDANTS WHICH ARE AFFORDED TO NONCAPITAL DEFENDANTS Robert reiterates that California’s sentencing schemeviolates the equal protection clause of the United States Constitution by denying capital defendantsthe protections afforded 89 noncapital defendants. Apart from that previously set forth in the Opening Brief, he has nothing further to add to this issue. ARGUMENTXXIII THE VIOLATION OF ROBERT WILLIAMS’ RIGHTS ARTICULATED ABOVE CONSITUTE VIOLATIONS OF INTERNATIONAL LAW AND REQUIRE THAT ROBERT’S CONVICTIONS AND PENALTYBE SET ASIDE Robert reiterates his claim that the violations of his rights as set forth throughoutthis brief constitute violations of international law and require that his conviction and penalty be set aside. Apart from that previously set forth in the Opening Brief, he has nothing further to add on the issue. ARGUMENT XXIV CALIFORNIA’S USE OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENTFALLS SHORT OF INTERNATIONAL NORMS OF HUMANITY AND DECENCY AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS; IMPOSITION OF THE DEATH PENALITY NOW VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION Robert reiterates his claim that the death penalty, as a regular form of punishment,is contrary to international norms of humanity in violation of the Eighth and Fourteenth Amendments, and that its imposition violates the United States Constitution. Apart from that previously set forth in the Opening Brief, Robert has nothing further to add on this issue. 90 Respectfully submytted VAAL W. MitchellGo Attorney for Appellant Robert Williams Dated: August 20, 2012 91 I affirm that the computer generated word countis 29,631. August 20, 2012 92 PROOF OF SERVICE BY MAIL Case Name: People v. Robert Lee Williams, Jr. No. 8118629 I am a citizen of the United. I am over the age of eighteen years; my business addressis: 24255 Pacific Coast Highway — SOL, Malibu, California, 90263. On August 20, 2012, I served the within Appellant’s Reply Brief on interested parties in said action by placing a true copythereof enclosed in a sealed envelope, postage thereon fully prepaid, in the United States mail at Malibu, California, addressed as follows: Robert Lee Williams,Jr. San Quentin State Prison P.O. Box V-05834 San Quentin, CA 94974 Dorothy Streutker, Esq. Staff Attorney California Appellate Project 101 SecondStreet, Suite 600 San Francisco, CA 94105 Mary Jameson Automatic Appeals Unit Supervisor Supreme Court of California 350 McAllister Street’ San Francisco, CA 94102 James H.Flaherty, I Office of the Attorney General 110 West “A”Street, Suite 600 San Diego, CA 92101 Ms. Carolyn Jones, Appeals Supervisor Superior Court of California County of Riverside 4100 Main Street, Room 110 Riverside, CA 92501 93 John Ruiz, DDA Office of the District Attorney County of Riverside 4073 MainStreet, First Floor Riverside, CA 92501 Bruce Cormicle, Esq. 468 North Camden Beverly Hills, CA 90210 I certify under penalty of perjury that the foregoingis true and correct. Executed on August 20, 2012, at Malibu, California 94 Hillary Neilson