versus the warden winkle may please the court your honor this is my st appearance in the th circuit and it's my understanding that this court is likely to be active in its questions i was going to begin by generally we have thirty minutes aside which is more than a lot and non capital cases so i generally try and we all generally just let the attorney run with it and then we will interrupt with questions when so inclined thank you you honor we have read and i'm familiar with you brave and if we don't ask questions about some of the strong points and about some of their strong points it's for that reason i understand your honor i'm going to try and focus on matters that are not necessarily covered by the brief and i wanted to focus on i mean i think it's obvious that one of the biggest questions in the case is was mr james uncooperative or obstructive in dealing with counsel and does the law permit counsel to to escape ineffective assistance of counsel charges or claims on that basis under the circumstances in this case i think the answer to that is no and i  think one point i wanted to make that's not really covered in the brief is that counsel really doesn't need the cooperation of the defendant to conduct a mitigation investigation and it's obviously helpful if the if the client will give you names of people to contact but here it appears that ms vinson was waiting for mr james to give information until he did she was going to conduct an investigation you and i have always not met regularly do this it's not a predisposition for decision except it's an inclination to tell counsel well thank the weak point of their argument because you don't need discussed strong point which is th because the burden of showing prejudice is on the petition he has to put in evidence that if he had been fully in phoned he would have said yes i want you to present that evidence mitigation and here's the problem on these facts as i understand it they all had state evidentiary hearing and no you did and you either introduced or proffered the evidence  mitigation that counsel should have found and should have put in had the petitioner allowed them to do so but i can't find any reference in your brief and i have not read the whole state court record it and could have taken the stand and testified gosh if i had known that i would have said yeah put it in but you don't indicate that he did that and in fact of course the record shows he didn't test off that's true or not a part of the reason for that is that he wasn't there the there had been a mix up on the morning of the hearing we had expected that the transportation people in the department of corrections would have transferred him jefferson county jail and that we could bring in across the court or into the court room but we all discovered on the morning of the hearing that he was still down a hole in prison so it was clear was a hearing the hearing was in general and the judge and i hope will in the judge's chambers and discuss the matter and i called mr james as well and what we ended up doing and this is set forth at the very beginning of the reporter's transcript of the evidentiary hearing  because we had a great many people who were who had been subpoenaed and were ready to go we ended up setting up a at a conference call system there was a conference call speakerphone that was used i believe was part of the judge's equipment or some somehow it was in the in the courthouse but that was set up to permit permit him essentially to appear telephonically the argument there were a couple of points at which he complained that he was not able to hear witnesses he was able to hear the lawyers and the judge pretty well but there were witnesses particularly social history witnesses he could not hear very well in between witnesses and sometimes before i dismissed a witness such as ms vincent herself i went into the judge's we took a break and i went into the judge's conference room by myself after muting the phone so that not everyone would hear were talking about and had a private conversation with him to see if there were additional matters that he wanted to bring up but i don't think realistically there's any way i could have put him on as as a witness by telephone and i'm not even sure under alabama law that's permissible he didn't ask as far as i know well i suppose i could have delayed the error or requested a continuance so that he could appear personally are you could ask for that hearing to go forward and then have him testify separately later did you do that i did not during the conversation and in a dipole judge this is my recollection our conversations in the judge's chambers when we discovered that he was still down at home and prison i don't believe are on the record but it's my recollection that we discussed all the various options there was some discussion of not moving the whole thing but i'm still a little puzzled that's why you didn't ask the judge to let you bring the witnesses in front of the judge and the state at a later date and testify honor at this point it's it's been fifteen years and i don't want to make in this statement to the court i thought i do remember that we discussed all the options that occurred to me the attorney general's or the judge  i did not your honor i'll add one thing one other factor here that is we were granted discovery and i believe it was late march and the hearing took place on june  it took some time after we were granted discovery for us to get records from the department of corrections and other sources so it was late may by the time we actually had heard midnight i think by the time we had records from the  substantial evidence that the client had possible thought disorder which is the kind of central characteristic of schizophrenia and paranoia and psychosis both as i understand it both elucidations and delusions are kind of come and go wax and wane conditions but thought disorder is always there if the client is psychotic and states are frantic so that was troubling and then in addition we had records of an evaluation by the president that showed skin so it thought characteristics and there were there was an a lot of other evidence i don't want to repeat all that but much of it is in the briefing all of which suggested that the client had mental difficulties and i think that may have influenced a great many things in the case including his ability to cooperate with counsel all of that but it also i think would  might desire to or decision as to whether or not to put him on you had good reason not to put him on but but still the burden is on the petitioner to show that he would have testified had he known that course if he gets on the stand and says now i don't know any of their sounds like being on death row except you know you're not married case that's a danger but we're presented with no evidence to contradict their assertion and as i understood the findings that he didn't want any mitigation are told the attorneys say well i think my view of the record is somewhat different honor i think that it's clear to me that much of the evidence that there are the testimony that was given by lead counsel regarding cooperation or you know showed he was completely cooperative that he gave her the entire story of what happened i know but you also had the general counsel say i've talked to him many times that's true but yunior counsel by his own admission was not involved in many times and he's told me it is better to be on death row in the general than in the general population in alabama which is not a fantastic assertion  i guess one of the critical questions is when did that supposed conversation take place the it looks to me as though he was property throughout there are no tribal councils notes if he were so uncooperative that he was if he was going to obstruct the presentation of mitigation that you would think counsel would have notes in the file memo to file or something that would support that isn't hard to do you think there's a difference between a defendant his perfectly bells in counsel's head because that's just that maybe there is something wrong with there some mental deficit in the point that needs to be investigated so that statements like that really should prepare a greater duty to investigate rather than a lesser like to see a difference between being uncooperative with an investigation and giving a specific instruction well i think the law of the united states supreme court was particularly wrong filters it's beard important versus mccollum pretty clearly say that even when counsel or even when the defendant is giving counsel instructions do not talk to this person don't put that person on counsel nevertheless still has an obligation to conduct mitigation investigation i think if we don't know to what extent he even understood what a proper mitigation investigation looks  instructions but let's say we agree with you that and mitigation the investigation should have been done and wasn't done and could've even born out of for it how how do we get past the president's problem  do you have do you have any evidence i've not seen relating frankly but do you have any evidence that mr james would have permitted counsel to enter whatever abbas mitigation evidence they had been able to come up with had they done the appropriate investigation well my view of the law is that the situation is really reversed until counsel has done the investigation that needs to be done and we can look to what the client says  an on investigation if you have counsel has no investigation no witnesses no no strategy for the penalty phase is done no record gathering then there's nothing for the client to obstruct there's nothing to refute i'd known that i would have said sure put all that on that doesn't let him off the seat here's the problem i have if you've got to defend it who tells and begs counsel to find some mitigation  counsel does nothing that's not considered structural error which obviates prejudice you have to show that if counsel had done his duty and done a competent investigation a thorough investigation there would have been evidence that there's a reason that as a result of which there's a reasonable probability of a different result so even if even if there had been no instruction you're focusing on weaknesses in the state's assertion that there was an instruction and that's fine but you've got to show that if if the counsel had done a thorough one he would have been able to present it and there would have been even the restrictions that were placed on us and he never objected even though he was appearing telephonically to the presentation of all this medication so doesn't that fact by itself tend to contradict the claim by coun he's not waiving anything there is nothing to wait there's nothing to obstruct and i think that under the case law is is what comes st i think i think the concern and this only speak for myself the concern is that without without trying the connection between what he would have admitted but why he would whether he would have permitted evidence to be a minute i think it's harder to overcome the president's point i  it seems like it for good reason your remaining on the on the performance pronk but it seems it seems harder to solve this president is prejudiced if we can't show that if we don't see any evidence that he would have actually allowed even the hypothetical evidence to be entered well your honor i think all of the authorities on this subject and again if you would act to the a b a guidelines and elsewhere in the comments on the all of the standards  the well defined norms that weakens says we look to to determine the targets of counsel and prejudice that one of the things that they constantly drummed into us through those is that you have to expect to one of the reasons you have to do the investigation so far in advance is that you have to expect that if the client loses at the guilt phase he's going to be despondent and fatalistic  might even be resistant to the presentation of evidence but if the case has to be handled correctly from the beginning the mitigation investigation is conducted and discussed with the client throughout the case so that when and if the time comes that he loses the guilt phase he's not going to simply give up and that can happen if you know you're dealing with somebody like mr james who has a history of trauma possible schizophrenia and other issues where you know being sentenced to life in prison at a minimum and possibly death is a shocking experience it's something that's going to throw i'm sorry i see my time is up  seconds so you've got some time i have a record question after rule thirty two hearing you produced affidavits from two mental health professionals and he was getting these late in the process and he wanted more time to respond the judge gave him week after week he hadn't filed any response and at the end couple months later when he wrote that decision the judge signed there's a  a guidelines and the other kind of professional sources of this standard practices of czerny's clearly show that that you know what you have to do at the end and in the mitigating phase is to you know you have a jury that at that point is asked to decide does this person get to live or die and if there is no mitigation phase the jury is being asked to decide life or death on the basis soley of the worst thing this person has ever done and you have to end there they're called monsters by the d a's in this case he said he's just plain mean there's nothing good about him you can look all you want but you won't find anything good where you have to prevent that kind of argument from being made by humanizing the defendant showing that he is a real person that people love him that that he has children he's been a good parent and they would like to grow up in knowing this as they get older there's  much that could be said that was very positive about mr james there was also a lot of other mitigating material such as you know the mental health evidence that we wanted to and i think could have presented fairly easily if we'd been given a mental health expert so i think she's just wrong i think her response on that reflects a lack of understanding on her part about what mitigation is and why it's presented and what what's going to happen if you don't why i have one more question about the alabama court of criminal appeals opinion and that the opinion keeps saying over and over the james wish that no mitigating evidence be presented on his behalf and that's just not consistent with my understanding he said don't touch my family at one point i guess the prosecutor asks now judgments and it affirmatively do did he tell you not to call any witnesses and she said that's right or something to that effect but whenever left on their own devices to characterize the requests that mr james made it was always that he simply said i don't want to talk to my family it's as my no that is i mean again i mean he was fine with my talking to all of this all of their names were listed in the pre sentence report what he was put on his sister she made that clear because there were three stories that she had to tell that reported prior violent incidents and they were relatively minor he got in a fight at juvenile boot camp for  example but on that basis counsel did not want to put her on and then my client's mother didn't want to testify and i think that was largely because i don't want to go too far outside the record here but she was married to a man named donald w cooke who had a record as long as your arm he had been sentenced to fifteen and eighteen years counsel was actually talking about putting him on the stand at one point i believe the night before at the end of the penalty phase and did not even know that you know what would have happened if they had put this person on the stand testifying mitigation so to me it seems that he did he didn't want his sister to testify he didn't want his mother to testify but that's not his whole family  would have loved to have had more rough and testify in his five siblings his two daughters he was very proud of and you know would have been nice to have them at least in the courtroom sitting there as kind of mute witnesses to that you can't wait until the end after a guilt phase verdict comes down when he's going to be disbarred efficient performance if you do it and then you turn to prejudice that's for me and i say this to last cause i didn't want it on your time because it's more you say in footnote five no united states supreme court decision appellant is found suggest a review of being court conducting strickland prejudice analysis may properly consider the number of jurors that would have needed to change the verdict for the defendant to prevail on his claim in other words you're talking about the district court's decision that the evidence would have had to change the minds of at least three jurors and you say that it's an objective test not it send credit jurors test and that kind of stuff my comment to that is would that it were so the supreme court and our court has to my consternation for years least one would change their mind well a reasonable probability of a different result doesn't mean given these twelve jurors supreme court said that and i agree is which established reasonable probability of different result standard for brady and it was carried forward so forth and so on but we have persisted and saying that someone perhaps should say to the contrary not that it would do any good it had a lot of been shelved since then but i suggest you get better argument there is regardless of the test you don't have to have seven like the district court said because alabama statu requires ten or more for recommendation a death and if if in this case three to change the mind there would have been a recommendation of death that's true but you don't have to have seven you don't have to have a recommendation of life comes to reason probability of a different result the different result that the jury phase would have been either a hung jury onto a hypothetical reasonable juror are a reasonable jury rather but thank you i will give you five minutes on reply of thank you don't miss curtis to thirty minutes if you need i represent state of alabama and unless your honour's have a different preference i'll start with talking about it then struction that the defendant gave the council where close to a left off of my friend on the other side so judge martin you aspecific lee if there was any evidence of him mr james giving his counsel instruction not to present mitigation evidence no mitigation at all yes your honor as opposed to simply instructing them not to involve  i just read that differently i mean that i mean he's not charged with doing her and that's to go some for her i mean maybe he understood her to say do you have any medication for me to use and his answer was like not on me or what for but if he hadn't a while them to call witnesses there could have been documentary evidence submitted right that issue your honor however the statement here is not about witnesses and that's why out i understand but that's that's a i mean that's the one thing you say that absolves them of putting up any medication no your honor that is just one fact in the record that makes it state court determination that the council were instructed not to present medication evidence reasonable there's also mr warren's testimony mr benson is testimony there's the refusal of the plea deal that would have given him life a not for without parole and he refused  already having been tried and convicted of the crime once sinister death warrants against his attorney's advice and in light of overwhelming evidence three when this testimony that he had in fact killed miss hall and so  mother she initiated this so she so the statement by my friend on the other side that miss benson was waiting for information and didn't do anything to start until she got that is incorrect because she actually initiated conversations with the mother and grandmother before she  and forty seven she writes in her notes that in this is on december th one thousand nine hundred and eight she writes in her notes that she called that mother and at this point the mother did not pick up but she did initiate that call and then she called the grandmother that same day in the grandmother picked up and she had a so in those two weeks law the only thing we have specific dates for are those two phone conversations however after she met with the client the client told her repeatedly and mr warren testified to this not to conduct this family and that the preclusion of contacting the family when a client says it can't be ignored and actually so she but besides contacting the family she also looked up the criminal records of the victim she looked at the criminal records of all the witnesses and she looked over the files she had the entire attorney file putting discovery the presence of estimation report in the mental health evaluation from the st trial where he was also convicted and she looked over all that and threw all of that information no red flags were raised for instance the mental health evaluation that was done shortly after the crime was committed showed that this defendant had an i q of one hundred and two and stated that there were no signs or symptoms associated with any major psychiatric disorder and the mother and the grandmother did not mention any signs of mental illness and the petitioner never exhibited any signs of mental illness and so based on that investigation  that a further investigation into mental health would not be did they didn't look at the prison records they did not because they reasonably concluded that based on mental health evaluation by a neutral rd party that was not necessary there could be no exact words he does try to describe essentially says i think that he was not going to try to say that mr james had not done anything wrong but he does plead and that they don't impose the death penalty and he does that their theory was mainly that this was a crime of passion i'm not going to tell you that mr james is a sympathetic defendant period and that's what he said yes your honor i just that he definitely said things to that effect and i believe during the record that is what he said view does he have any obligation to try to paint mr james as a as a human being or sympathetic in any any regard i do believe he they do have a mitigation strategy that was reasonable under the facts of the case and that strategy was to say that he was emotionally immature and couldn't handle the break i think that given the instructions that the petitioner gave them not to present mitigation evidence which is clearly supported by the record for instance we talked about he refused a plea deal to get life in prison without parole which is strong evidence that he wanted the death penalty mr warren's testimony that he multiple times told him that he wanted the death penalty over life in prison without parole and that he was sabotaging his case to get that and i just want to clarify for the record both impetus reply brief and here today in court petitioner stated or tried to cast doubt on those comments by saying that those aren't found anywhere  and that she testified to that however misspent and never testified to the fact that he was wanted that death penalty instead of life or that he was out in his case mr warren is the one that testified to that he's the only one that testified to that and his credibility has never been questioned by the state court witnesses and then perhaps mashallah only the record supports the idea that he instructed his counsel not to present mitigation evidence because the growth of the two courts all colloquy where the defendant agreed not to present medication  evidence and that rule thirty two dollars judge is the same judge that presided over both trials below that convicted this mr james to death twice below and this court in the supreme court sharon has said that trial counsel not to present mitigating evidence and so the why do we know if there is mitigating evidence presented at the st trial there was no mitigation evidence presented at the fair showing honor and so that the record clearly shows that that finding that there was an instruction not to present any evidence was not an unreasonable determination of the facts and deserves deference under and then i've got a hypothetical for you and let me be clear i know that i know that these are not the facts of this case so don't worry i'm not suggesting they are but let's say that a defendant knew perhaps he was a gang member and he knew of a credible threat on his life within the general population in prison and let's say that prison officials had said tough luck we don't like you we know you're a bad guy or a gay member and so we're just going to let them do whatever they want to you that person quite credibly might decide that he preferred a to be on death row for a long period of time than to be in a situation where his life was threatened in a different way does that impact our decision on whether his instruction to his counsel and in that regard should should keep counsel from showing that there was prejudiced by a lack of mitigation well your honor i think you would have to look and see if the council inquired as to his reasons for not wanting to be on death row and then depending on if they asked him and if he told them this  because because of the facts he laid out and then it could be a different analysis however like you said those aren't the facts of this case in this case the petitioner wanted to be on death row because of reasons like he had a television he didn't have to argue about whether to watch baseball or try to and said he did not accept it until he was very sure that the petitioner was not going to change his mind and so i think you could have a different analysis if there were different facts but under the facts of this case mitigation case is and there's been no invest in bit mitigation investigation done what was your response i mean it's not an informed waiver at that point so i would have two responses to that st your hon practice however to enform mr james about what a mitigation case is and what they could offer miss vincent testified that she did inform him about the penalty phase didn't do a medication investigation i mean he had no idea what type of things could have been prevented presented to the jury your honor i'm sorry in response to that question now is responding to whether they should explain what a medication evident meditate medication evidence was used for which counsel could do without providing presenting i'm sorry without doing a mitigation investigation however we're not here disputing that this was a limited investigation we do think it was a reasonable germination that they did not perform efficiently because the two areas of mitigation investigation that mike a friend on the other side disputes were not investigated properly where the mental health evaluation and the mental help potential middle mental health medication evidence and the social history difficult childhood what about i mean this kid you know he left home at sixteen but up until that point he had lived in eighteen different places i mean that's that's because for sympathy on some people's part when you think well your honor what i would say to that is that the petitioner so that there were no red flags were raised that would cause a reasonable attorney to if they didn't look at any records and that's not entirely true they did not get any more records but there were some records in the previous case file they also looked at the mental health evaluation which didn't mention further and this vincent who was a very experienced trial attorney she she testified that jefferson county juries are not sympathetic to difficult childhoods if there's no evidence of abuse and she made a reasonable tactical decision after finding no evidence no red flags  always did present mitigation have events and do an investigation and as it the performance test is an objective one what she believes doesn't matter to that analysis and here it's clear that based on that the evidence she did have that it didn't raise any red flags she was not a reasonable attorney at least one competent attorney could find could have acted as she did and in this case the standard is that at least one fair minded least once and not and less i'm sorry more than once and less than twelve times not to involve his family which can't be ignored and that he was uncooperative my friend on the other side said that there was no evidence i think besides testimony potentially what about the what about the lack of presentation any evidence that ms hall had sometimes been the aggressor against mr james rather than purely the victim  affair with and the strategy that they have suggested that they took which is to present this is a tumultuous emotional relationship you are so speaking to the prejudice prong and as we said there's two steps that he must mean the prejudiced prong one he hasn't met and it's very clear but to the nd one which would be the way that could potentially weigh in favor of their theory however a lot of my friends on the other side never discusses the balancing never and never discusses the aggravating factors and petition has not met its burden of showing that the aggravating factors would outweigh the mitigating if the rules even if the rule thirty two evidence had been presented at trial  earlier question this grant as standard that he had to show that he would have allowed it at his trial or as a rule thirty two dollars hearing it the standard is that he must show in the record that he would have allowed it at his trial and he didn't and so rule thirty two hearing st of all it's very weak we've already discussed that there is some social history there is evidence that he had a difficult childhood he did move a lot his mother was those three years his mother had was not there he lived with various family members in that time so i don't think i would characterize it as him trying to feed his siblings however i would characterize it as a very difficult childhood however we have so there is evidence that he had a difficult childhood  but like miss vincent testified that does not is not particularly persuasive to juries in jefferson county moreover mental how do you know if you don't trot for goodness sakes i mean what so she had tried thirty capital cases and and it was from that experience that she stated that jefferson county juries were not of authentic to that type of mitigation evidence that she didn't know what it was to see i think she was saying that generally the evidence of a difficult childhood is not something the jefferson county juries are sympathetic to and the other to the mental health of the day evidence was also eat they speak they mention these m m p i evaluations and  these don't make any particular findings about any testy these simply state that people who score within this or range might have the used certain characteristics and common mean when   it said his score strongly suggests that the profile is invalid and so that makes that even weaker moreover they try to point to this one comment on an evaluation they caught in a valuation that the person  has i'm sorry mr james had schizo would characterise this is the prison record yes your honor and i just wanted to point out that that comment was in the notes that was a thirty day evaluation that is not done by psychologist or psychiatrist is done by a license counselor these are on every thirty days for all the death row inmates there cursory and more importantly there's twenty four dollars of those evaluations in the record all of them except for this one say or say something to the effect of adjusting well or adjusting or stable the a reasonable attorney to their farther i mean if the lawyer had seen the prison records and it said that mr james has skipped so he tendencies that would have been a red flag wouldn't i don't think so your hon as it was one out of twenty four it won out if it was one out of twenty four and she had a more and she had a actual and that was by counselor and she had an actual mental health evaluation by actual psychologist who was neutral that said he had no mental health problems and that he didn't and didn't say anything about needing further evaluation and so no your honor i don't think that would have been a red flag however about about where to about one fall in the twenty four do you know it was in i don't remember the exact date i can get it for you  but it was either in late ninety eight or early ninety nine i believe it was april of ninety nine but it was late ninety eight early ninety nine and it is on but it but i can tell you the exact and as we mentioned the their theory of the art mitigation was that he was emotionally immature and couldn't and it was a proud passion this m p i to found that he fell people within his core range were often free of stress psychologically well adjusted and capable of dealing with problems in their daily lives that they had sufficient personal resources to deal with problems that they were caught conscientious conventional practical reasonable and sensitive and so that would have cut strongly against their mitigation argument and also the testimony by the sister that he had broken a previous girlfriends arm threaten his stepfather with a gun and beaten up a job for job his job corps supervisor would also clearly cut against their mitigation strategy also positioner hasn't shown that a competent attorney would have presented it and so all of the evidence at the rule thirty two dollars hearing even if it had presented at been presented at his trial would not have it it was a reasonable determination to find that it would not have outweighed the aggravating circumstances and there's strong support for that specifically because the rule thirty two dollars judge was the judge at both of the charles blow and since the definitive death of both of the trials circumstances in mitigation and aggravation from the trial and the rule thirty two hearing and found that the mitigating evidence did not outweigh the aggravating circumstances and so there's no reasonable probability that the sentence or what have determined that the mitigating evidence at the a few notes back to the very st point that was discussed a good bit with my friend on the other side of this case ins at the st prejudiced question which is did the petitioner put on the record that he would have allowed the evidence to be presented there was some discussion about the fact that the petitioner was on the phone at the rule thirty two hearing however on twenty two page nine my friend on the other side says on the record that he has no more that he has all these witnesses there that he had requested a continuance but that he had requested a continuance because of discovery issues and there's no and there was also no affidavit entered there are other ways to get on the record that the petitioner would have allowed this evidence presented but that is not that there's no evidence of that in the record because there's no evidence they would have allowed it to be presented on the record he can't show prejudice and so and pope just to clarify because there was some special of the burden pope makes very clear that the burden is on the petitioner it even says that the argument why i was asked is bad because it is in i'm quoting that to misplaces the burden and so because of that  they were presented too late and therefore i'm not going to mess this up so the way met my mr van winkle presented it was not accurate i the way that it happened and this is that  them and then the court did give them a week to respond however mr van winkle had not disclosed certain things they needed to respond so within that week they sent a letter to the court copying mr van wheel and that letter they were never admitted so given all of that and especially the fact that there's nothing in the record that shows he would have allowed this evidence to be presented and even if it had been that it would clearly not outweigh the aggravating circumstances in this case and that has already been decided by the will thirty two judge and lester any questions we ask you to affirm the district court will thank you counsel mr van winkle five minutes well i hope i don't speak too fast there's a lot to cover but one thing before i move on i wanted to make the point that with regard to prejudice strickland states that the the burden of proof on the defendant when it comes to prejudice is less than a preponderance of the evidence and that was never referenced below as you know conner's use of probability was unfortunate and strickland decision but that that is true i asked about that one time she said you can think of a better word and it may be that i want to make the point that none of the courts below that all of the courts below cited chandler for the theory that you need a preponderance of the evidence with respect specifically to the performance project but none of them made any reference to the fact that the burden of proof is less than a proponents of the evidence so when we're comparing the evidence that was actually not presented in this case with of the evidence presented in the added in the evidentiary hearing i think the bit that alters the balance of stance will you know i'm not sure what less than a preponderance means exactly what it's thirty five percent to thirty or forty five dollars but but we're investigation on the part of counsel frequently they involve much more evidence actually presented and run pill importer prick specifically involved instructions poor and specifically involved instructions not to speak to particular witnesses and yet counsel was found ineffective in every one of those cases they're all cases from the two thousands there were all we can zoom in particular is just before the dish hearing in this case going to the counter at the clerk's office and looking in the computer to find criminal and civil records all of the major players and that's where the brighton police report showed up indicating that ms hall had attacked mr james and ms ruff and while they were in their their truck waiting in line at mcdonald's on able to move forward or backward smashed the windows of their car with a tire that is significant not to show the violent tendencies of ms hall but but significant both for mitigation purposes and to to combat the theory presented by the prosecution that mr james was stalking ms hall in fact the reverse was true and and that would have made i think a big difference with the guilt phase as well as well as the penalty phase but i find it's difficult to believe ms ince and looked at the criminal records of ms hall and didn't can i present or what mitigating evidence can i present ms curtis indicated that statement was made on june th that's the day before trial trial took two days he was sentenced to death on the th you can't wait that  long to do in that occasion investigation ask the defendant himself does he have any mitigation evidence to put on and then walk away if he doesn't and that's essentially what happened here how is mr james supposed to know what's mitigating and what's not mitigating he has no experience in in death penalty trial say you know you can't just rely on the defendant and that seems to have been what happened here throughout the proceedings ms vinson kept going to him and say well give me some names of people to talk to that's not how you do a mitigation investigation this may have been a better question for your friends at their table but do you know when mr james st started having discussions with with the wilson about his lack of desire to be in the general population at the present at the jail i believe you mean mr warren mr warren yeah i don't specifically and it's hard for me to believe that those conversations would occur before or at least until after the guilt phase really came down i don't you know having looked at the files i don't see records of a lot of conversations where that could have taken place i don't know specifically where it was i mean i know that the mr warren and ms vinson both testified that they were having difficulty with him and that he was fatalistic and wanted to stay on death row because he could watch t v that doesn't  with the judge james i know but it also you know i don't think it's a conversation that would have taken place early on and you know based on the notes he seems to have been very cooperative at least until after you know the transportation of yourself in the investigation and so forth and this it went into the state of adventure hearing the system of justice is that it for that and we commend you for doing