is fort lauderdale and we're here for argument and lyndon fitzgerald pace versus the georgia warden and gerald wesley king jr is here for the appellant pace and sabrina graham is here from the state of georgia and mr king are you ready to proceed with your argument i am your honor pace's counsel at sentencing and the nd and rd which address the prosecution's misconduct during sentencing phase closing and counsel's ineffectiveness and failing to object to portions of that argument that were improper as a matter of state law to address it unquote light or drive by screening to see if they resent a guilt phase defense of intellectual disability this screening indicated that mr pace had organic brain damage and borderline intellectual functioning and the need to rule out bipolar disorder a major mental illness dr handing recommended further testing and evaluation counsel said they would get back to dr andy and he never heard from them again counsel obtained the full scale testing the doctor handing recommended they would have obtained as this court s feral consistent unwavering and compelling and wholly under budget expert evidence that mr pe suffered from significant permanent organic brain damage clear sub average intellectual functioning of the organic nature and paranoid performed a screening instrument that's very important dr parenting's quote light unquote drive by screening is there to is just that it is a screening it is not a comprehensive test and the results of that were he estimated mr patients like you would about seventy eight dollars that's borderline intellectual functioning that itself by the way according to precedent of this court is mitigating evidence even if it did not amount to a guilt innocence phase and where we say the coun investigation into mr pate his mental health at that juncture they are not going to ignore the red flags of organic brain damage intellectual disability and major mental illness which those screening alerted to now when we look at counsel decisions about when to terminate an investigation we assess them for all of the circumstances in this case again we have overwhelming d n a evidence unrebutted testimony at trial was that mr pace was implicated in each of the four cases with the chance of a false positive being one in the five hundred million for three and one in a one hundred and fifty million for the other so this is a case where and and to back up just slightly this is a case where counsel again the defense team is consistent on this testimony decided that a mitigating case a case presenting the kind of mitigation that dr guaranteeing screening alerted them to did not fit with their approach and their approach according their testimony was residual doubt so they have opted to  these lawyers are pretty experienced we had experienced lawyers and investigators who were working on this case who had experience with with capital cases and made a strategic decision but let's say that we accepted we accepted your argument that we should not give deference to the georgia court's findings on the stric performance problem the facts in this case are pretty bad as involved in the murder of four elderly women and the facts  the supreme court cases and other cases in our brief identifying cases that are also extremely aggravated in which penalty phase relief was granted for failure to investigate and present the kind of compelling evidence that we have here the most important fact death was not a foregone conclusion in this case and that despite the facts of this case and the paucity of the penalty phase presentation which we have not yet discussed the jury was amenable to sentencing him to something other than death and so we can't assume even as terrible as the facts of this case are we cannot assume that a death sentence was out of reach particularly given the again how powerful the mitigating evidence is here organic brain damage schizophrenia borderline intellectual functioning all categories of evidence the supreme court in this court has recognized again and again as mitigating so that qu well i think it speaks to the point that you brought up specifically or honor which is whether the evidence in this case was so aggravating as to push the possibility of a sentence of others and out of leach and we know again from case law well your honor if that's the case that just argues again for counsel ineffectiveness and the prejudice to mr pace from not presenting this powerfully mitigating evidence that would have been hance the case that the jury evidently responded to and i want to make this point this is very important trial counsel said that there penalty phase theory was residual doubt however at the penalty phase they instead pleaded mercy simply had a member of mr pac sam yes your honor this is from reading about i want to go back to the mitigation question for just a moment if you don't mind i just want to make sure i understand your point i am understanding you to be arguing that when the initial  g evaluation was done it was done for purposes of determining whether under georgia statute which prohibits execution of so called mentally retarded individuals  he also noted that there were some elevated factors and findings regarding and in particular delusions and hallucinations that he recommended that additional testing be done but that would have been for the staff phase of the penalty phase and at the penalty phase there was no testing done at all and the testing that had previously been done related only to a determination of whether mr pace would be eligible under the georgia statute of being relieved from the possibility of a death sentence and my understanding no your honor that's correct that's correct and administered as you said screenings that on many of the scales reflected unusual content of young usual responses indicating the presence of delusions and the computer generated scoring for this instrument actually said he needs to be evaluated for bipolar disorder which is a major mental illness but that point trial counsel walks away from  that the court there found as a matter of fact that the investigation was reasonable under the circumstances of the case and that that is what the state a g s court found correct your honor i don't think that's exactly right they say that the court i believe they say that counsel performed reasonably in issuing further investigation because it would contradict their residual doubt theory all right so and is i understand that there was some record i know you mentioned a few times about the testimony of  trial counsel the trial counsel in fact testify that the purpose of the hiring doctor had tendered and was to determine whether there were any red flags regarding possible mental health issues not just mental retardation is that correct no determine whether or not there's any red flags that are raised with regard to possible mental health issues did counsel might testify that i'm trying to get to the place in the record that you've indicated your honor and i might have to try to pull it up here and respond the testimony of the testimony of mike mears and pam leonard and then to mount was that the screening was done for the purposes of ascertain and what you wrote was really quote i went to press data centers being the doctor to take a measure of approach to psychological testing by doing some initial screening then looking for correlations looking for correlates and the literature i use scores and all that correct i don't think that is correct your honor because and i'm not saying again that the screening indicated schizophrenia specifically we're saying that the screening showed elevations on a number of scale looting on i don't think it should be read that narrowly i don't i think that is one to do is leonard is that he wanted to do full scale testing to follow up on mental retardation and that the results of other testing indicated  record to suggest that dr harrington was not recommending an inquiry into mental health and indeed the results of these screenings point towards wave red flags for doubt no you want your honor you're absolutely correct there is nothing in the closing argument alluding to residual doubt except in fact an apology to the jury from counsel because mr pace's some members of mr pace's family said that they did they thought that he was innocent still despite the evidence presented during the guilt innocence phase what counsel did during the penalty phase closing was to say to the jury the case here is obviously very aggravated but what would imposing a sentence of death say about you and try to work that angle so the actual penalty phase case despite counsel's prada stations was a mercy case and really only  phase closing directed the jurors to come with him to each of the victim's home in turn and imagine themselves experiencing what the victims had while learning graphically describing their rape and murder this was four separate and improper golden rule arguments to ju the supreme court would have reversed despite counsel's failure to object he told the jury i don't you get a little more of this is judge wilson again this these comments were made during the penalty phase rather than the guilt phase but haven't we said  in our opinions that you get prosecutors get a little more latitude during the penalty phase then they go phase in making these sorts of arguments which would include the golden rule argument and the other arguments that you mention in your some of these were not objected to and others that the court gave curative instructions well if i can address actually the failure to object on claim three looking at my clock and seeing twenty seconds give because of his failure to object that misconduct was reviewed by a by a far more stringent standard than they would have been had he objected in terms of whether they're in terms of the objections that counsel did make counsel did object to a number of the two and a number of instances of misconduct i think it's worth noting that in one of the most egregious ones which is when the prosecutor uses the story of jesus as cruci x to comment on mr pace to silence the court and counsel can't even think of what a curative instruction could be the court ultimately said that it was very close to the line but accepted the  dealing with the scope of the conduct here yes your honor i apologize for stopping i'm hearing some crackling and i wanted to make sure i wasn't talking over one of you i think when you look at the scope of the misconduct here it is far worse than darvon it's worse than parker it kicks off all of the standards that this court has enumerated in brooks where this is misleading  prejudicial it's not isolated it's extensive it's deliberate not accidental as evidenced by the prosecutor repeatedly doubling down on the misconduct and once there has been an objection which judge wilson goes to your point sometimes  sentencing phase released on its own and the trial counsel failure to object which resulted again in these claims being reviewed by a by a far more stringent standard is also grounds for relief and seeing that over my time unless i have another maui and harvey are some of your most experienced death penalty litigator is out there they're being accused of not having investigated whether or not mr pace was abused the most experienced among us make mistakes sometimes and i don't think we can decide the case surely on the experience level of the individuals involved i think we have to look at the particular decisions they made in this case and let me tell you what i am concerned about here i am concerned that the entire mental health breeding that was done was done in the context of determ pace might be eligible for the george exception to the death penalty under the so called mental retardation exception and one it was determined that he wasn't eligible for that although dr harrington found elevated levels of certain things in the screening including delusions and hallucinations and suspected organic brain down midge and told counsel this and even suggested following up and offered to do so no further steps were taken and with respect to the sentencing phase as opposed to with respect to the guilt phase as to whether or not he in fact had any such down so that's that's my st concern my understanding when i read through the state court discussion of this is that the decor did not find problematic in any case because it concluded that counsel had made an affirmative the terminations to proceed instead of a residual doubt feeling under the sentencing phase and the problem is when i look at what counsel actually did it just does not line up with what counsel said he was doing there's not a think i'll mention of residual doubt that i could find in the closing argument maybe you can find it and you can help me with that point me to where that would be that would be very helpful to me but in the absence of that and you know if there might be some unreasonable fact finding here on the part of the state court in this regard and i want to give you an opportunity to respond to the sure i can i'd like to lay out the record as i see it regarding trial counsel's decision regarding mental health screening i do think that it was a mental health screening about more than just mental retardation and like i say that mental retardation could have been prevented and then a tank facing well but here you had dr harrington who gave an affidavit who said yes he did intelligence testing but he also did a near a screening and you have mr mears testifying during his deposition that we would have done a mental health evaluation we would have looked for anything to see if there were any red flags for mental health issues he does not limit it to mental retardation and in fact mr mears also testified that hey i would have talked to dr harrington afterwards i would have asked him about the evaluation and he says that one point that parenting didn't turn up anything to change his approach in addition to all of that you also have the fact that trial counsel was in constant contact with pace you have the fact that they did just an extensive time with the family members and friends you have been getting every kind of record they could on not only pace but his mother and his father so they have a full picture here of what it was what his life was like and they chose even after her dad said that they chose not to go forward with that i think that's a reasonable decision when you look at the totality of the circumstances in the to tallaght of the record and i'm not saying that mr mir should be found and if i could just because he's so experienced it just doesn't make sense to me that he would not have gone forward in these things if he didn't see something there that i mean he gives you no lectures on this and so that doesn't make any sense to me well as lots of times when we make mistakes they don't make sense whether but really i'm not trying to be flippant but let me ask you i am sorry sorry no can you focus for a moment for me on the residual doubt issue here where can i in his closing argument during the sentencing phase st i'd like to say that mr mears said that their theory going into trial he when he testified at his deposition their theory going into trial was going to be residual doubt and they felt like they had a good reasonable doubt defense there to begin with because they felt st d n a evidence was need so they could point out was unreliable science and he didn't go in and rebut it as petitioner claims it actually was cross the person the experts were cross examined by bruce harvey a trial extensively in addition to that they also want to show prosecutorial aggressiveness they were overzealous and mr and they felt like they had other defense and that's what i was getting to i'm sorry i'm talking on when did he he said no that it just didn't pan out in the guilt phase like they wanted it to the evidence did not pan out so they weren't left with this big reasonable doubt they thought they were going to be left of his closing argument i'm sorry i don't have the federal site he says i think it would have been hypocritical for us to argue as we did and strongly and we have argued that the evidence didn't prove him not guilty you made that decision but how stupid would it have been to  say well you found him we have he's not guilty but we say he's crazy anyway so to me they're sort of trying to back off of that say you know we said he's not guilty they've still not saying he's guilty but we're not going to try and put up in something and say this office it of what guilt that he's not guilty we do we have to look at the closing argument by defense counsel if we were to conclude that the  count at least four or five of the witnesses at the at the at the penalty phase specifically state that they believed in the innocence of mr pace and that he could not have done it based on their knowledge of him and that their knowledge of because he says ignore that they said that of course they're going to of course are innocent they're his relatives and he can't really hold it against pace that they still think he's innocent because there is relative so of course they're going to think the best of him to me that  opposite of arguing residual doubt maybe i missed something here what made you think tell me how that lines up with a residual doubt argument i don't think it's counter to the residual doubt argument i think that has something to do with what goes on at trial you have trial counsel standing there and he's like at the jury and he sees their reactions and when mr mears testified in state hey b s he said that when the family testified that he didn't do it it came across cross as belligerent and perhaps he felt like he needed to shore that up with the jury and say and that's why he did it not because he wasn't saying there was no residual doubt there i think it was just a strategy that was born from you know looking at the jury and the trial  understand how arguing not to listen to what they said and not to hold it against his client when they said that they thought he was innocent support a theory of residual doubt but no i don't know if it doesn't seem to support me well even if this court were to find the council performed efficiently or that the state k b s court in fact their deficiency finding wasn't entitled to deference and you drop down the prejudice i don't think you of the trial you know i think you know for those of us who have seen people who who suffer deeply with these kinds of problems you know i think that that might have had an effect on the jury in deciding whether it wanted to recommend execution or instead recommends life imprisonment and i think it's hard to be able to quantify exactly what effect that would have half so i don't know if you want to a those two things but i don't think we can say it's a done deal that there was no prejudice here when you look at the actual record well yes well st i would like to say that it's not about whether there's no prejudice it's about whether or not the state court reasonabl determined that there was no prejudice and regarding your st issue that no where they sent out does this really mean you know life without parole or whatever i see that and several of our death penalty cases and i think that's come up in a couple of cases before this court is well not not too long ago i'm happy to do a supplemental on that but certainly i think that that doesn't seem to be you know if you don't have to supplement along that my point is simply that you don't see that all the time and i'm sure you know that other cases but doesn't mean that you see it in every case it's not the kind of question that you see every single case and it's not the kind of question that appears in the majority of these types of cases i mean exactly how many it appears is not really the point the point is that it's clear that the jury was at least thinking about that as an alternative well we don't know if they were thinking about that as an alternative or if they just generally wondered if you ever got out of prison if you have a lot of sin and i mean there's becomes completely irrelevant well i don't think it becomes completely irrelevant i mean they were there to determine whether or not he gets life or whether or not he gets death maybe it was just you know something in the fantasy and somebody might like hey well look does it three now who he describes so if you're going to decide death on that basis then what would it matter to you whether a person who got life in prison could be paroled or not because you're just dying so it's irrelevant it makes no entertaining the possibility of sentencing him to life if you are under the impression that it will be without the possibility of coal and i would just respectfully disagree and say the jury could ask questions for any number of reasons we don't know exactly why they asked that particular question or assigning a reason to that that that not may not be why they did and to go on to the prejudice issue i would like to say even if you not you know maybe you're well read about this what is your authority for that position sure and i think what i'm saying is it from what i understand judge look you're saying it's and you got a diagnosis seven years after trial that you have schizophrenia but you don't have a diagnosis they're not upon the evidence they presented and say hey vs and with that have given a proven prejudice and i say absolutely not there either because st of all you had a credibility determination by the district court finding that it was not convinced that he in fact suffer from schizophrenia and that's a fact finding in a credibility funding secondly you have a whole host of issues that go into the credibility of the schizophrenia diagnosis st you have the family giving one dayer to at trial and as the sa and giving another narrative in state haiti which means then that you have a credibility with your historians and the middle health expert evaluation and their diagnosis are based upon the credibility of their historians here you have a big issue there secondly you have a you have a different diagnosis by the there at the prison regarding him rd you have the fact that these mental health experts never once mention the crime they never want to talk about the facts of the crime they never during the penalty phase of the of the five so you know i mean i think that there are a whole lot of issues here by the way you know the state trial court made a lot of errors in sa number of these kinds of hers in the state court decision when it reached the conclusion that a proper mitigation investigation has been home i don't know if you want to speak penny of the but i want to bring them to attention sure and i would say regarding i was talking about prejudice regarding the deficiency prong you have the c p c opinion by the georgia supreme court and in the c p c opinion they specifically state and i quote after independently reviewing the trial record and the hay vs record we conclude that while the hey this court erred in some instances in considering the fact of counsel's alleged innocent face deficiencies on the jury finding guilt rather than it selection of a senate in determining whether the petitioner has shown the necessary prejudice to constitute ineffective assistance at the sentencing phase of trial court did not err finding that patients failed to show that counsel sentencing phase performance and those instances was deficient under constitutional standards and there's no petitioners ineffective assistance of counsel client so i would say there you have the george supreme court doing its own independent review and then when we look at the wilson versus sellars it says although you look through a summary opinion that's just a presumption that the higher court is relying upon those particular findings and but that can be rebutted if it's something obvious in the record well here we have the george scream court saying we're not looking we thorough they they gathered every single document with mr bases name on it and the mother's name on it and his father's name on it and it family's name on it they talked to every single sibling they talked to family friends that were given to them by their they talk to  says oh i don't remember his name but he knows this other guy i do have to this other guy so i don't even see where pace told him about that and going back to judge royce involves questions regarding the drug use he had been arrested for drug use and had to go in for drug screenings for that so we do know that he did use drugs and he did campaign to tell counsel that he used drugs so it wasn't that helpful to know that he used drugs it's that they didn't know that he was doing crack every weekend he scoped out these ladies houses he broke into their houses he one of them he sat on top of her while he took her she would took the shoe string out to strangle her with it and everything about his crime show that he knew exactly what was going on he cut their phone lines so the stuff he did doesn't i just don't see an explanation from these mental health experts regarding how schizophrenia was affecting him regarding these particular crimes i'm not saying it's not mitigating evidence i'm just saying that it doesn't get a lot of weight and i don't think it's and reasonable for a court not to give it a lot of weight and he broke into the home he actually the record reflects that there was evidence during the penalty phase that he broke into the  there and that was extensively litigated in the senate saying fay and he also put guilty to the crime and the trial court they called in the trial court but defense counsel called in mr purvis who was his  face but he told them that she was sitting there she was in the bed she was reading and i do believe i mean somebody said that and i mean he said that and somebody at trial said that i just don't remember if it was in the part where whatever they said in their argument wasn't evidence regardless of that i think it's clear that the prosecutor here made several regardless of whether it justifies in and of itself granting of the petition i think it's very clear that the prosecutor here meets several inappropriate and really outrageous remarks and you know i would hope that in any case that the state of georgia would instruct its prosecutors that this type of there is the ethnic rage cartoon i mean the religious thing you know i mean there's just so much of it here the sodomy sodomy remark about well you know he likes anal thought of me so put him in jail i mean it was outrageous and if for no other reason then just full appropriate instruction i hope that the georgia attorney general's office will instruct opening statement and we're not i just would like this again draw back and say here we're looking at whether or not the state court the georgia supreme court's decision was and reasonable an under supreme court precedent and when you look at outrageous and i guess my question is how do we do this incentivize prosecutors if we don't grant writs of habeas corpus when they're when the when their behavior is outrageous even though the decision under supreme court precedent and this particular case we would say that they did and part of that is because the facts of the crime are so aggravated that well let me ask you let me ask you one more question before you conclude if i could truly considering that particular sentence and they were told he would be in prison for the rest of the life they still did not give him that they thought which is the death penalty which is how we know that it could ultimately affect the decision it was just a question of curiosity correct the jury asked the court about life about the possibility of life without parole and the court buys the jury if i understood mr graham correctly that if he was to life he would spend the rest of his life in prison so obviously when the jury asked that question they just wanted to make sure that even if they did not recommend the death penalty that they recommend that life imprisonment that this guy would never get out and the judge instructed them that and they still chose a recommendation of death and if that's the case i'm hard pressed to determine how is there anything i don't no i don't think so i think that we can look at the nature of the mitigating evidence here that was unavailable and we can look at other cases in which there was a great deal of that relation but in which mitigating evidence of this tight which again to refer to your language in fairly consistent on wavering under a lot of mental health evidence that is powerfully mitigating and even in cases perhaps where there was no jury note i don't concede that that was the meaning of the note and i know the two justices of the supreme court of georgia interpreted it that way then we still can get to a place where death is not a foregone conclusion and that is supreme court and andr just last week said you know we have to be careful in doing these kinds of comparative where we look to precedents and say look here's where the bar is unless you think that the mitigation is above this bar relief is unavailable or the flip side of that i would argue that if a case is aggravated to a certain point what you have to do here is the prejudice analysis that the supreme court has laid out you take all of this mitigating evidence you for there was a  you added to what was there in trial and occasionally that means subtracting aggravating evidence as was the case here where many aggravating aspects of the counsel's presentation would have been negated by this evidence and i so what was covered during when ms graham was up there is testimony from dr dudley that at the time of the crimes he was in acutely psychotic phase of schizophrenia and that that compromised his perceptions judgments and behaviors your honor i'm not sure we can characterize that as a credibility finding dr dudley did not testify before this judge responded did not depose him or call him to testify i think what we have here is the judge discounting dr dudley's testimony in contra accounted for that diagnosis and explained why they believe that schizophrenia was a more precise was the more correct of the diagnoses the screening done but and but there's also there is  also erroneous to say as was said below that the x prison doctor dr beecham said that his issues had resolved the so that mr pace continued to be delusional but refused not we needed to pursue further mental health investigation in this case yes your honor but if you look at his affidavit which is fourteen to page ninety five he says that the evaluation was not directed at determining this type of mental illness and that's a quote and i there's no dispute that they did not do the evaluation the doctor here and recommended i apologize i see i'm out of time if i could say quickly as to the penalty phase closing arguments judge rosen i regret to say the misconduct here has been tolerated by every court that has were viewed it and indeed unless this court were to intervene i don't see what would prevent further her riddick display like we saw in the penalty phase closing that this case as soon as he says mr pace would enjoy prison because of anal sodomy we're not in court anymore there's none of the dignity and respect for these proceedings that well and says is required and so we would ask the court to