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6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8

9 MARGARET RUDIN, Case No. 2:11-cv-00643-RFB-EJY

10 Petitioner, ORDER 11 v.

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13 CAROLYN MYLES, et al.,

14 Respondents. 15

16 17 This habeas matter under

is pending before the Court for final 18 disposition and also on a Motion for Enlargement of Time by Respondents (ECF No. 83). 19 On August 9, 2019, the Court issued an order directing the parties to address several 20 issues with the federal record. (ECF No. 81.) While both parties have responded, it does 21 not appear that the parties have fully complied with the order. 22 Flawed Exhibits 23 The prior order referred to multiple flaws in the exhibits and exhibit list filed by 24 Respondents, based on the Court’s preliminary review. (ECF No. 81, at 1-2.) 25 The order clearly stated that the careless manner of filing reflected in Respondents’ 26 exhibit filing could not be tolerated: 27 The Court therefore is unable to confidently rely upon respondents’ exhibits as reflecting a correct, complete (as to 28 relevance), and accurate representation of what was filed in 1 respondents’ index of exhibits to reliably navigate through the 2 voluminous exhibits in this matter.

3 The Court cannot accept this situation given its obligations as recognized in Nasby. The Court therefore must 4 direct respondents to certify, as specified at the end of this 5 order, that: (a) respondents’ staff has re-reviewed every single page of the exhibits and index of exhibits on file; (b) all errors 6 in the exhibits and index of exhibits have been corrected; and (c) to the best of respondents’ knowledge, there are no more 7 errors in the exhibits and index of exhibits filed in the federal 8 record.

9 The Court understands that the record is voluminous, filling the equivalent of five copy paper boxes in hard copies. 10 But that heightens – not lessens – the need to do the filing right. 11

12 The Court further understands that it is not generally feasible for counsel to individually prepare the state court 13 record exhibits for filing, and that counsel necessarily must rely on staff assistance. In the final analysis, however, 14 counsel’s duty to file a correct representation of the underlying state court record materials is nondelegable. The Court trusts 15 that, after corrected materials are filed in response to this 16 order, a second order in this regard will not be necessary. If it is, that order instead will direct counsel to personally review 17 all of the exhibits, again page by page, and certify the correctness of his filing, without reliance on any delegation to 18 staff whatsoever. The careless manner of filing reflected in the multiple examples noted in this order cannot be tolerated. 19 20 (ECF No. 81, at 2.) 21 Respondents’ thereafter filed purportedly corrected exhibits. Counsel certified 22 “that Respondents have, to the best of their ability, reviewed the state court record in this 23 matter and endeavored to correct any errors in the index.” (ECF No. 84, at 2.) 24 However, the Court is still encountering substantial flaws in the state court record 25 exhibits filed by Respondents, in what so far has been only a partial continuing review of 26 the record. For example, Exhibit 204, a transcript from a day early in the trial, stops 27 28 1 midsentence on page 200 and clearly is missing over 109 pages. (Compare ECF No. 66- 2 8, at 5 with ECF No. 66-9, at 103.) 3 The Court finds it difficult to believe that a conscientious, competent, and thorough 4 second review of the state court record exhibits filed herein could have missed such a 5 glaring flaw. Moreover, the materials filed by Respondents in response fail to correct 6 numerous errors, including those specifically identified in the Court’s prior order. 7 The order noted that Exhibits 59 and 61 have apparent imaging/scanning errors. 8 Corrected exhibits have not been filed, and Respondents’ Notice of Partial Compliance 9 provides no explanation. (See ECF Nos. 58-19, 59-1, 84.) 10 At least three of Respondents’ replacement exhibits have the same scanning error 11 as the original exhibits. (Compare ECF No. 65-12 at 70 with ECF No. 85-10 at 298; 12 compare ECF No. 65-19 at 94-95 with ECF No. 85-11 at 209-10; compare ECF No. 66- 13 18 at 35 with ECF No. 85-14 at 35.) It is not clear to the Court exactly what, if anything, 14 was corrected by the replacement exhibits. It is highly unlikely that the Court Reporter’s 15 underlying original transcripts in the official state court record had errors of this nature. 16 The Court acknowledges the extensive effort expended by counsel in responding 17 to the prior order. However, these continued patently obvious flaws in the record 18 presented to this Court cannot—and will not—be tolerated again. This federal habeas 19 case has been pending for over nine years. The combined state and federal litigation 20 further span two decades, with the 76-year-old petitioner recently having been paroled 21 from physical custody on the second of her two ten-to-life sentences. The Court has a 22 fundamental obligation—regardless of the ultimate outcome—to see that justice, to all 23 concerned, is not denied by further delay. And it must have a reliable, unflawed record 24 upon which to do so. 25 The Court is now forced to issue the second order referred to in the prior order. 26 Respondents’ counsel must—individually—review the state court record exhibits on file 27 in this matter—individually, page by page—and thereafter personally certify to this Court 28 following that review that all errors and flaws in the federal filing of the state court record 1 exhibits have been corrected. If the Court finds further errors thereafter, the Court will be 2 left with no other alternative than to sanction Respondents’ counsel personally for the 3 failure to provide the Court with a reliable record after it has issued two compliance orders. 4 Given the duration of these proceedings, further failure in this regard will not be tolerated; 5 and sanctions instead will be imposed personally on counsel, with a proviso against 6 indemnification of counsel by the State. Respondents’ counsel must take all steps 7 necessary to assure that the Court has a reliable record upon which to base a decision. 8 Video of Opening Statement 9 In the First Amended Petition, Petitioner made numerous references to an “Exhibit 10 A” with a video of the Defense’s opening statement. Yet there was no such video in the 11 federal record. (See ECF No. 81 at 4.) At this late juncture in this case—with an Answer 12 and Reply having been filed and the case submitted for decision—the Court established 13 a procedure governing the consideration of video that was not an official state court 14 record. The Court ordered that “[P]etitioner, if she wishes for the Court to consider any 15 video exhibits not then on file [at the time of Respondents’ responses], shall file a motion 16 for the admission of the video exhibits, supported by directly apposite authority along with 17 presentation of the proposed exhibits as manually-filed exhibits submitted with the 18 motion.” (ECF No. 81, at 6.) (emphasis added.) 19 Petitioner did not file such a motion as directed by the Court. Her counsel instead 20 filed, along with a Second Amended Petition, an attachment designated as “Exhibit A,” 21 which references the video exhibit and includes declarations by Petitioner’s current 22 counsel and a juror from the 2001 trial. (ECF Nos. 86-1, 86-2, 86-3, 87.) Counsel then 23 overnighted a flash drive with the video itself to the Court’s Courtroom Administrator. 24 In his Declaration, counsel asserts, inter alia, that: (a) “the trial was broadcast 25 nationally on Court TV” and also locally in Las Vegas (ECF No. 86-2 at 1); (b) former 26 postconviction counsel Christopher Oram “had boxes full of the VHS videotapes of 27 Rudin’s trial” (id.); (c) Petitioner told current counsel that “she had a friend in Las Vegas 28 who taped the trial as it was aired on local TV” and these are the videotapes counsel 1 received from Oram (id.); (d) “[t]he tapes were dirty and had dust and mouse droppings 2 in many of the boxes” (id.); (e) he “was able to digitize many of the tapes of the trial” (id. 3 at 2); and (f) “none of the video of Amador’s opening statement was altered in any way, 4 other than sometimes there were issues of syncing the video and audio” (id.) 5 It is therefore clear that the video is not an official state court record, nor a copy 6 obtained directly from a news source that broadcast the trial. The video provided is 7 instead a “bootleg” copy of a television broadcast made by Petitioner’s friend that was 8 digitized by Petitioner’s counsel nearly two decades later, with counsel of record seeking 9 to serve as a foundation witness for its introduction as an exhibit.1 10 The Court directed that the admissibility of any such unofficial video be determined 11 on a contested motion because there is a substantial legal question as to whether the 12 Court can properly consider it, in lieu of or in addition to the extant official transcript and 13 regardless whether the Court ultimately applies de novo review. (See ECF No. 81 at 4 14 n.3.) Petitioner seeks to present an exhibit subject to a substantial legal question after 15 the pleadings have been closed and after referring extensively to it but failing to produce 16 it over three years ago in the First Amended Petition. The Court directed that the 17 substantial legal question be addressed on a contested motion so that the matter could 18 be definitively resolved prior to a final decision in the case. 19 The Court’s order that Petitioner must present apposite authority means that 20 Petitioner must present authority establishing that a federal court can consider an 21 unofficial video of a state criminal trial proceeding when adjudicating a habeas petition 22 where the official transcript of that proceeding exists. Petitioner’s argument urging that 23 the video is properly authenticated does not meet this standard. Petitioner presents no 24 apposite case law or other authority on this controlling issue. 25 Judicial and legislative rules regarding broadcasts of criminal trials implicate 26 substantial public policy concerns regarding the integrity of court judgments. See, e.g.,

27 1 The prior order directed Respondents first to clarify whether there was an official video record from the trial. (ECF No. 81 at 5.) Respondents did not do so. Regardless, Petitioner’s response clearly 28 establishes that the video is not an official state court record. 1 Hollingsworth v. Perry,

(2010). The Supreme Court of Nevada rules 2 authorizing the broadcast of state judicial proceedings clearly provide now and at the 3 relevant time, that the broadcast material does not constitute an official record of the 4 proceeding: 5 Official record. The official court record of any proceeding is the transcript of the original notes of the court reporter or 6 court recorder made in open court. Videos, photographs or audio reproductions made in a court proceeding as a result of 7 these rules shall not be considered as part of the official court record. 8 9 Supreme Court Rule 241(2).2 This rule precludes reliance upon an unofficial video of trial 10 proceedings on an appeal from a conviction. See, e.g., Fugate v. Commonwealth, 62

, 21 (Ky. 2001). 12 It is one thing to receive new evidence on relevant underlying factual matters in 13 federal court on de novo review. It is another to consider an unofficial broadcast of a trial 14 in lieu of or in addition to the official state court record, where an official transcript of the 15 proceeding is in the federal record and the state Supreme Court’s rules dictate that the 16 official transcript rather than a broadcast constitutes the official state court record. Absent 17 some directly apposite, binding authority supporting the consideration of an unofficial 18 broadcast of a trial, such a broadcast should not be considered in a federal habeas 19 proceeding where the official transcript is available, as it is here.3 20 2 Prior to a 2011 amendment the pertinent language read: “Official Record. Reproductions made in 21 court as a result of these rules shall not be considered as part of the official court record.” See Christo Lassiter, An Annotated Descriptive Summary of State Statutes, Judicial Codes, Canons, and Court Rules 22 Relating to Admissibility and Governance of Cameras in the Courtroom,

, 1056 (1996). 23 3 In support of her authenticity argument, Petitioner presents, inter alia, a declaration from a juror that the video corresponds to her observation of the opening statement nearly two decades earlier at trial. 24 (ECF Nos. 86-2, 87.) Petitioner further suggests that the video is “self-authenticating” because of the existence of the official transcript of the opening statement. (ECF No. 86-1 at 2.) At the same time, 25 however, Petitioner refers to transcription errors in the official transcript. (Id.) Petitioner therefore suggests that the unofficial video (purportedly rendered authentic and admissible due to the existence of the official 26 transcript) rather than the official transcript is the conclusive source as to what was said during the opening statement. In all events, the authenticity argument does not address the threshold legal question as to 27 whether the unofficial video may be considered in the first instance. The Court expresses no opinion as to potential issues raised by counsel of record serving as a witness in this matter and/or as to the scope of permissible testimony by the trial juror. 28 1 When the Court directs a party to follow a particular procedure, as it did in its prior 2 order, counsel must comply absent an order granting reconsideration. Petitioner must 3 comply with the procedure outlined in the Court’s orders to secure possible consideration 4 of the video exhibit, for the reasons discussed supra.4 5 Retainer Agreement 6 The Court acknowledges Respondents’ efforts to obtain a copy of the Retainer 7 Agreement—currently a sealed document on the “left side” of the state court record—by 8 filing a Motion to Unseal in the state district court on September 20, 2019. The minutes 9 on the online docket for the state district court reflect that the court orally granted a motion 10 to unseal the retainer agreement on November 25, 2019, with the State to furnish a written 11 order. This Court will allow Respondents a reasonable time to file a copy of the Retainer 12 Agreement as an exhibit in the federal record. 13 14 Conclusion 15 The Court again acknowledges the extensive effort expended by both counsel in 16 responding to the prior order. Nonetheless, counsel failed to fully comply.5 Counsel need 17 to carefully adhere to and fully and expeditiously comply with the Court’s orders. After 18 nearly two decades of litigation pertaining to this conviction, this habeas action must be 19 resolved justly, promptly, and on an appropriate record. (See also ECF No. 81 at 4.) 20 IT IS THEREFORE ORDERED that, within sixty (60) days of entry of this order, 21 Respondents’ counsel shall: (1) personally review, page by page and without delegation 22 to staff, each exhibit filed by Respondents herein, and compare all errors therein to the 23 original state court record; (2) ensure that corrected exhibits are filed herein that correct 24

25 4 The Court will not review the video on YouTube as suggested by counsel. (ECF No. 86-2 at 2.) The Court will not adjudicate a federal habeas action based upon an unofficial video uploaded to a video- 26 sharing platform that is neither part of the federal nor state court record. 5 In addition to the instances noted, Petitioner failed to properly cite exhibits in her pleading. The 27 order directed Petitioner to cite exhibits filed by Respondents “by reference to the ECF number and electronic docketing page number of the filing in the federal record.” (ECF No. 81 at 5.) Counsel instead cited exhibits by exhibit and page number in the underlying document. The Court will not make counsel 28 correct the substantial filing, but both counsel must exercise greater care in following the Court’s orders. 1 all flaws in Respondents’ exhibits that are not also contained in the original state court 2 record; and (3) certify in an express, separate, standalone notice filed with this Court 3 specifically that: (a) counsel has personally reviewed, page by page and without 4 delegation to staff, each exhibit filed by Respondents herein; and (b) to the best of 5 counsel’s knowledge and belief, following a diligent effort to fully comply with this order, 6 all flaws in Respondents’ exhibits that are not contained within the original state court 7 record have been corrected. The notice shall specifically identify any flaws that remain 8 in Respondents’ exhibits that are also present in the original state court record. 9 IT IS FURTHER ORDERED that no substitutions of counsel for Respondents will 10 be recognized by the Court that would relieve current counsel of the obligation to timely 11 comply with this order. 12 IT IS FURTHER ORDERED that any substitute exhibits filed in response to this 13 order shall be designated as such with a suffix to the prior exhibit or partial exhibit number 14 in a manner that distinguishes the corrected exhibit from the prior exhibit that is being 15 corrected, including any prior attempts to correct the exhibit. Respondents should not 16 refile the entire set of state court record exhibits including exhibits already on file that 17 have no errors. 18 IT IS FURTHER ORDERED that within sixty (60) days of entry of this order, 19 Respondents shall file a copy of the Retainer Agreement between Michael Amador and/or 20 his firm and Margaret Rudin. Given that the state district court has acted to unseal the 21 Retainer Agreement, the copy of the agreement need not be filed under seal in this matter. 22 IT IS FURTHER ORDERED that Respondents’ Motion for Enlargement of Time 23 (ECF No. 83) is GRANTED nunc pro tunc. 24 IT IS FURTHER ORDERED that the flash drive video exhibit submitted by 25 Petitioner is rejected at this time without prejudice, for failure to follow both the Court’s 26 prior order and Local Rule LR IC 1-1(d) regarding manual filing. Petitioner shall have 27 thirty (30) days within which to file: (a) a motion for the admission of the video exhibit, 28 (b) supported by directly apposite authority, in addition to (c) simultaneous submission of || the proposed exhibit as a manually-filed exhibit in the manner required by Local Rule LR 2|| IC 1-1(d). Briefing on the motion must be in accordance with the local rules and requests for extension of time are strongly discouraged. Repeated failure to follow the procedures 4|| required by this and the prior order will result in the exclusion of the video exhibit from the 5|| Court's consideration. 6 The Court requests that the Courtroom Administrator return the flash drive to 7 || counsel in a manner consistent with the Clerk of Court’s practices. 8 IT IS FURTHER ORDERED that any requests for extension of time with respect to any deadline set by this order are strongly discouraged. Any such requests for extension of time based upon scheduling conflicts with matters in this or any other court, including the Ninth Circuit, must indicate that: (a) the other matter was filed prior to the 12|| original April 25, 2011, filing date of this matter; and (b) counsel has timely provided the other court with this order, and that court has both acted upon and denied a timely request for extension of time sought in full or in part due to the deadlines set by this order. A copy 15|| of the order(s) denying the request(s) for extension of time in the other court(s) must be 16|| attached with the Motion for Extension of Time. This Court reiterates its intention to 17|| secure full compliance with this order and bring this matter to a conclusion as 18|| expeditiously as possible, subject only to a contrary order by the Ninth Circuit. 19 20 DATED: July 15, 2020. 21 22 A<- 23 RICHA WARE, Il United States District Judge

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