one three four to five three robert williams jr versus mark out arguments not to exceed fifteen thirty minutes per side mr certainly may and you may proceed thank your honor as as a comma before the court today we have proposed three issues for the court and they all involve consul the first issue that we raise was whether mr williams invoked his right to counsel under edwards the second was whether there was a no involuntary and intelligent waiver and miranda in the third was the ineffect assistance of counsel during the mitigation phase now the the first issue that we raised was the edwards issue in the ohio courts and the united states district court  panel looks at the record it was clear that mr williams invoked his right to counsel which would we would even have to get into miranda  i believe he invoked is his right to counsel when he ran from the police from the toledo police in the early morning of the twenty second of february and he ran for one half hour and you know where he ran to the el impediments house in allentown i'm in was the attorney that he had retained and talked to sergeant detective beavers two days earlier said he was going the interrogation is imminent there is nothing anticipatory about it it make deal the situation was one where a person in the sixth amendment right to consul said he was being  charged with robbery i believe and there was a host of other robberies that had been charged with so it's on charge conduct and there's and he said well i want to invoke my right to counsel as to those fifth amendment on charge cases well the supreme court said you it was too early to raise that you know the sixth amendment the fifth amendment are distinct but this is not the situation we have here that's why the district court erred in the ohio supreme court was erroneous in the in the fact that they said it was anticipatory but it wasn't exactly it was so let's talk about the situation here so  believe the question was asked did he yell out allen pena means name and he said yes so i think he gave the completely ok so put those two things together in your view that's to talk to at the scene penname and then goes up and talk stupid to sergeant for stern says here's my card i'm mr williams consul i don't want you to talk to him until i get there now i understand certainly that he can invoke mr williams rights but that he goes to the police station ok and as soon as williams kisses a police station forster then contacts the chief prosecuting attorney mr whalen i believe his name was they have a conversation and tenement is the way it is never told upon him it is in the building now i suburban that you don't have to tell him the totality of the circumstances surrounding whether he should invoke his right to counsel i understand that case law but this is this is distinctly different because this is not a situation where a third party calls and says i want to represent adamant this is mr mr williams this is mr williams being to believe that he has no constitutional right to speak to him and when does he invoke counsel in the context of the interrogation well if you if you're if you're not set that he invoke transcript on the tape before he is mirandized he says why did you run off my attorney and says i don't want to do this now i think those statements taken now should he have been told at that point that his attorney is downstairs in waiting for two hours to see mr williams i believe and that he should have been but do you know the facts and circumstances are different cases but what supreme court case do you think most closely supports your argument i think edwards would look at it and i think davis says that you know whether it i'm sorry doesn't he then immediately say he's going to speak to them well you know if you look at the roberson case for robertson versus arizona it says if the supreme court says if a person there's no reasonable probability that he would have been acquitted even without his statements you know and i always find it difficult to go to to look back retrospectively at say what impact would this habit we're talking about a death penalty case we're talking about the fact that i only have to high consul when he would have to convince one juror to avoid the death penalty it's important to note that maybe in the case  insofar as the guilty innocence verdict that part of the case may have been difficult but certainly this hour and twenty minute confession quote tape interview of why you went to that to the jury in the mitigation phase we which leads me to the mitigation phase which i think was a totally incompetent on part of the trial counsel's in their presentation the mitigation if you look at the mitigation and you look at what the supreme court says it says it part of our argument was the putting on  thank lack of the prison records the failure to devolve to the torture and child abuse that he had and more importantly whether we should add a sexual evaluation an expert on that area on its face when the first time you pick up the file and you're going to defend this man there is a allegation of rape of an eighty eight year old woman which would lead me to believe that there are some psychological problems if this these allegations are true but what is dr lakhdar lane he talks about it sounds if you read the argument made by the state it sounds my argument is in and then they can characterize it as that was on direct appeal right yes ok how supreme but where but we're really talking about a different claim the claim that was on post conviction that whatever you want to say about presenting lane's testimony it was ineffective not to at least also have t right yeah and that was and that was an affidavit by dr browne i believe in the fact that if you look at the record it indicated that at least consul was cognizant of the fact that he probably should have had one because there was testimony that he contacted dorian hall from the public defender's office who indicated that he had been involved in a one hundred fifty cases of and that he felt that the person with  expertise was necessary for good mitigation presentation and he said he would assist in that but consul never asked for continues they went for one and then mr williams said i don't want one no i don't i don't recall anything in the record where he asked for a continuance where was when was it that the trial court asked mr williams to waive his speedy trial right and that was i think at some point he wan on the the showing in the post conviction motion why was there no affidavit from child counsel or anything that would show that council had not adequately explored this i wasn't consulate for close post convention i really couldn't but isn't it a problem that we don't that there are conceivable strategies there conceivable strategic reasons why trial counsel would not have pursued this other defense granted him and i think you know every every time you look at a strickland case right you know even if they say it's to prague and want one is whether was deficient performance and then whether was prejudicial it's seems to me that the easiest thing to say from the state courts or the general thing that the state courts say oh it was strategic well you know i mean anything can be strategic it doesn't mean that it's a fact of minute geishas if you look at the mitigation it's one hundred twenty pages two sisters and the mother  and the mother says it's of the family is is screwed up because all the men were given some medication to treat them for syphilis i mean she was way off base the two sisters talked about the fact that he had been tortured in such a way abused by his father but nobody developed that theory the only thing you have is dr lane saying he's a hard nut this criminal that he be a threat to the to the to the people in the prison  doesn't get his prison records to do to show that he possibly wouldn't be a threat to the prison population says that any further medical treatment would do him no good that's what i'm saying is seem like he was a prosecutor's witness now granted this is a difficult case by anybody's perspective the facts are horrendous i understand that but but that only makes it more important for you as trial counsel  you know almost and i say forget about the trial aspect but concentrate on the mitigation because you know there's a good likelihood that that's where you're going to end up well you know even though the truck also didn't call a sexual abuse expert dr lane is appears to be an eminently qualified psychologist who talked about the history and background of mr williams went into his upbringing  in you could have an expert in any area doesn't mean he's the right expert for the case it seems to me that and i'm not not i i think you're absolutely correct that dr lane had good qualifications not whether he was the right witness for the state or one of the right was for defense maybe a whole different cause but it seems to me and i've done quite a few of these cases in the trial of the law so that that extremely harmful in terms of how he characterizes what when you're when you have a jury and you tell him he's a hardened gutless criminal they can't do any good with any further treatment and he's probably  could be a danger to the prison population it doesn't leave you a whole lot of attorney what do we do about the fact that we don't know why that happened we don't know if it's because counsel has an effect of well i you know i think it's difficult you know a lot of these cases i've found over the years that and i don't know for the fact that this case but sometimes your view trial counsel i missed a chair cases end up going into politics and not being judges you know i had  to two or three of the cases prior to this and i don't know if that's the situation with this case but sometimes it's difficult to get an attorney to say that he his actions were light on incompetence it's just a difficult thing for them to admit i mean and i think that may be the reason i'm sure they were contacted now there is other attorneys that will do whatever they can for the client say what you know hopefully if it'll  help the client or maybe i did screw up but there's a probably a bigger percentage that have a problem doing it so i think that is a comment upon us and don't look at the facts  brown line of reasoning more evidence about his sexual misconduct growing up would have come before the jury and that that could have been a real problem it here is here's the thing it came in anyway because all his medical records came in and then that exposed dr lane to cross examination by the by the state and he ended up fact you're being foolish or incompetent you know i that that's why i think dorian you know was saying you're going to need this at some point because it's going to come out it's really the strength of the of the state aggravating circumstance i mean that was the more i think if you look at the argument that was the most persuasive of their argument you have the breaking in burglary robbery of an eighty eight all you woman but once you talk to him you may make the decision that he's an expert i'm not going to use i'm not going to submit this report to the prosecuting attorneys so you should have at least i think he should have had another expert lined now i would have never put dr lane on if that was after i prepped him that was the kind of responses i was going to get from me just if it's incompetent and then i assume what you're saying is you can't kno which approach is better in till you have the second expert have nothing to compare it to absolutely i mean we make those decisions every day as his trial counsel i mean that that's what we do was it so late i mean i know there was there wasn't a lot of time marks to august in a death penalty case doesn't seem like a lot of time but give any idea why he was seeking these systems so late of the mitigation i think that the trial court set these parameters and deadlines and you know i'm not familiar with that you know that work so i couldn't give you that response but it seemed to me that nobody this was the way we're going to proceed and were to get it done and i guess three months or whatever they wanted they were doing it for some of these cases they take almost nine months to close to a year to get properly prepared not unusual did it dr lane report go into this heartless cutlass criminal but ok so never came up with a diagnosis i mean that was part of the problem ok so we thought we can't really criticize counsel them for that kemah because he was fairly surprised by if witnesses statements well i mean i think that you should know if you look at dr brown's affidavit in post conviction he comes up with almost seven different diagnosis alcohol abuse he had been sexually abused an personality i mean he's got all the the d s m cites i don't think that was the case with dr lane i don't think he ever came up with a diagnosis other than saying i reviewed these prior records and it is seems to me that if he got the treatment when he was age thirteen and on that he may not have been before the court as he is today so it's sort of it was and when he also spalt that he never got his treatment and doesn't seem like much recently discussing and we'd ask that you affirm the district court's decision because dr allain it was reasonable for trial counsel to both employ and rely on dr lane as was mentioned from his v he was eminently qualified as an expert he's both board certified and and practices in the field of psychology and had ports or vacation and forensic neuropsychology as well and as the state courts discussed what's happening between dr lee and dr brown is that just a disagreement between experts there's no requirement under any supreme court case law the defense counsel continuously so it's not really a disagreement i mean because he says things that aren't in the report that are very damning but you have this whole other area of exploration that although council was directed to it he doesn't do anything about so how how can you say that it was reasonable to use dr lane and not someone like dr brown when council never made a choice i mean he never said they were consulted and discussed the idea of having a second there's absolutely no evidence all you have is that he else dr lane if he was qualified he said no and he asked him being to somebody and he said no so there's absolutely no evidence that he further explored that but there's a presumption under strickland and under the double differential standard of the day that they used a sound trial strategy that they were acting as competent and there's no evidence to rebut that idea but all the evidence indicates that they didn't speak with a sex expert pursuing a sex offense expert could have been and it's a double edged sword because there there was evidence presented that did come out about his sex offense background but there was not and placed on that sex offense background and the way that there would have been if they would have called a sex offense expert to discuss and death his multiple sex offenses and that background there's there's mention it would have been to it would have been to evaluate and sort of come arrive at some diagnosis that would have bearing on all the things fact that this person is an expert in general psychology and use a forensic psychology there was nothing about that that suggested that he had expertise in this area of sexual deviance but he's  an expert in forensics neuro psychology and mr williams the diagnosis made by dr brown and and the discussion had by dr lane is not that this is someone who is simply a sex offender he has a multitude of issues and dr len talked about the impact that his childhood would have on him the impact or potential impact that some of the brain not pre injury as but head injuries he'd had could have prevented the impact of failing to get treatment early enough in his life these are areas that are more general than a sex offense expert would be directed to what dr lee did was talk about the repeated failures to intervene with p p d sickly said this is an awful person and if the system had gotten involved earlier there's a very good chance of probably in fact a probability that he wouldn't of turned out to be the awful person that he is cracked which is different from saying this is a person who has done and in this last offense did awful things and this is why it happened because these things happened as a child and therefore he has these triggers and this and he has a this brain damage that makes it impossible for him to control his impulses and all of this together this is why this happened and at the time it happened he didn't have the ability to control himself well it's very different testimony but that the  idea that mr williams is unable to control himself that's where there's a disagreement because dr lee reviewed all the records and agreed with the previous examiners who said that that is not ok how would that even have gotten in but if you have an expert that it why is it relevant that they disagreed with each other you still you go with what makes a better defense and it's up to the government with their own it spur and you can anticipate that they would have had that expert anyway the question under strickland is whether it was reasonable for trial counsel to choose dr lane and not to continue pursuing expert after expert after expert it was reasonable to choose dr lee well was it expert after expert he's told there's an area of expertise that you really should pursue because it's more relevant to your case and he's told that by someone who defends these cases on a regular basis and there's it appears that all he did was ask dr lane if he could do it or if he knew anyone and that's all he did why and how can you make the choice if you don't have the info there's no evidence that he knows what cracks mitigation theory that was the one presented as being a possible mitigation theory to present how do you i'm going to ask you again how do you choose between two approaches with out  two experts without knowing what both of them will say that that the supreme court has said that the idea of a strategic choice presumes that counsel knows what bo counsel didn't know what the sexual deviant expert would say so how can he reject that in favor of plaintiff he doesn't know what the expert would say there's nothing in the record from trial counsel to tell us what they talked about if they pursued we know today there's no indication that he spoke to anybody because there's nothing from trial counsel we know they didn't speak to dr brown and we know that dr lane told them i am not a sexual abuse and we know that he went to trial actively did not do this there's no evidence of that in the record there's there's no evidence from them about what they're who they consulted there's evidence they didn't talk to dr brown there's evidence the doctor told them i'm not an expert and there's evidence they talk to mr hall about this but there's nothing to say that they said we're just not even going to try well they they did they asked lane if he knew anybody and he said no and then there's nothing from truculence about what else they did so we're supposed to i that they did pursue it they did speak to someone and they decided that it wasn't a good test because under strickland there is a presumption that they acted is reasonably calm but there's a presumption unless the evidence indicates otherwise i mean it's true we don't have them saying this but all the indications are that they asked lane and then they dropped it there's just there's no way to say that from this record because they didn't talk to trial coun alice no way to say the opposite from the record but the presumption is that they acted competently so in order to see to overcome that presumption there would have to be some evidence in the record to overcome the presumption  you're asking us to say that they made a it's a rational strategic choice to go the route they did her question to you was what is there to show that they made a choice between a and b when there is no be in the record i'm asking is for for this court to find that it was reasonable for the state courts to apply the strickland deference and to reach the conclusion that these trucks were acting as a fact of trial counsel the fact that there is nothing in the record to support the defendant's burden goes to the fact that i mean it's it's kind of hard you know for i think for you to ask us to presume that they were acting reasonable when we look at the record before us when the defendant's expert says to the jury this is a good list heartless criminal who is irredeemable basically and will be a threat and a harm to people in prison testimony and what he talks about is the fact that this is a person who had become a diminishing threat in prison and that as he ages and is an institutional setting and around inmates he is not he is not a threat in course he said he would be dangerous i don't recall that specifically i'm not doubting that's that that's in there but there's something to be said for an x for a jury is going to be suspicious of an expert they know that they're paid they know that this is someone who's there for him to offer a balanced person back to even admit that this is someone who has had problems for years and years and years not only takes a little bit of the teeth out of the prosecution who as we see in this gets up and starts trying to go down the road of eliciting evidence about his previous crimes but also allows the jury to trust that this is someone who isn't some plea simply a paid talking piece that someone who's making an unbiased evaluation of the defendant and that and adds weight to the other statements that he makes about how the system failed him his mother failed him you know his family failed him he was in an environment where he wasn't given the chance to learn the correct behaviors and instead learned to victim be victim blaming b but then well you know and then that's when he finds fault with him for blaming everybody else when that's exactly the defense that he's trying to run that is that somehow it's the system's fault not his i'm not sure i understand what you mean by he by dr lee and finds fault with mr williams he does mention that he that that mr williams doesn't show remorse for his actions but it's in that he explains in the context of how that came to be and we hear from his two sisters and see his mother on the stand  people for the problems that have happened here and so that's exactly the defense that lane was running on the jury he wanted the jury not to give him the death penalty because it was the system's fault in part right it but then he's faulting him and and the mother blaming the system i mean it's not a very effective defense  i think what dr lee is doing is describing how mr williams continuing to victim shift is indication of how this happened that his mother continued to do this and that he grew up the way he grew up led to this environment where he does shift blame and he admits that he shifts blame and i don't think that there is a way to get to get around the fact that that's what mr williams does and that he does it as a result of the fact that he wasn't properly cared for  a time when it would have had an impact  that feels to overcome what we earlier or what you earlier talked about is i mean these are horrendous facts and it's a crime against an eighty year old woman who who suffered very  at his hands so the worst case i've seen yes and so it would be a very difficult burden to overcome in any circumstance and the record in this case  but that's the nature of mitigation i mean the juries are just ok you've convicted him we're talking about life in prison but now we're talking about the person and their background and how they got to be that way i mean  usually you're talking about pretty terrible crimes act correct and so you're going to hear some things about someone who has committed these terrible crimes that are not going to be favorable if they painted him as being all sunshine and l it would be an odd contrast with the vicious crime that took right but that's not what this sexual misconduct experts do they don't paint them as being in the scent they just try to explain to the jury how we could be that somebody could do this awful horrendous thing and i think that's exactly what dr lane was doing was trying to explain how it came to be that he would do this awful friends thing well no he was explaining how it came to be that he would not feel the remorse or i mean he didn't really explain the how that night he could have done that in a way that talked about how he got there i i think that dr lane explained how his background led him to take actions that were all about him and regardless of whatever else dr lane did it seems to me that in the moment when dr lane was giving his expert testimony that no matter what else you look at dr lane sitting at the defense expert who expert opinion is that this is an individual who is so dangerous and so you with a mobile that you know basically he's hopeless doesn't that basically overshadow  and it becomes so volatile and prejudicial that it really takes away any choices and decisions that the jury might have it because he's basic with the rest testimony not saying anything about the strategy he is basically saying that this individual is hopeless and that's that's to me that's why that's why i have trouble with the your assertion about a reasonable strategy that meets strickland and that surpasses those things i i understand the the report looking at the report that dr william provided and looking at his testimony and the opening and closing statements of elicited he talks about how this is a person who will become a diminishing threat in prison and talks about you know once he usually that once they hit forty they become intimate shing threat they point out was his that's  a general statement of all prison of people sort of peak in criminal activity and then go down to the peace in prison for life or whatever the charges are going to go down and their propensity to commit crimes correct i believe that's true yes but he in this case specifically talking about mr williams and says that because mr williams tends to pick on people who are weaker than him as he himself becomes weaker over age forty he'll become a diminishing threat and also talks about the fact that he is someone who does well with structure and an in it in an institutional setting and talks about the fact that that's what was missing from the first part of his life is that wasn't wasn't the best evidence of that how he didn't prison fact i've looked at his prison records and he's made a very good adjustment he hasn't there's no you know there are no violations no indication that has been violent no indication that he's preyed on anybody you know he's made a very good adjustment and that's really compelling evidence that he's not going to be dangerous but that also leads to a risk again that they're going to emphasize his previous crimes some of that came in but it wasn't the type of  case where you see the prosecutor going offense by offense of why he's in prison and didn't he do x and y that you would have opened the door to if you had gone into more discussion about the number of times he's been in prison what came out was cross examination question isn't the someone who has been institutionalized but why is that there's no chance that he's getting out so why is his performance outside of prison relevant showing showing that he is something that mr williams was someone who committed numerous previous offenses would emphasize the even more emphasize the dangerous side of what you know but that's what does that have to do with counsel making the point that he's had a very good adjustment in prison i mean the the the prosecution's ability to introduce that evidence is not dependent on testimony that he's made a good adjustment in prison right either either it's relevant or it's not but saying that he's been very that he's behaved very well in prison doesn't open the door to behavior out of prison it wasn't very important for dr lane to buttress his conclusion that williams would not be dangerous in prison by testimony regarding his actual behavior in prison and your answer to me was well but then the prosecution would have talked about all the awful things he did and i'm saying i don't get that connection that testimony to your behavior in prison doesn't open the door to testimony out of prison and it seems to me that if they were going to introduce that stuff it would have nothing to do with whether dr lane supported his opinion with the actual prison records i argument about the prison records that was that was made to the district court and the petition was the trial counsel did not obtain those present records and so that that's why they weren't provided to dr yes but that's part of the argument that he was ineffective for not giving dr lane the ammunition that would buttress his testimony that he would not be dangerous in prison and i ok and i understand what you're saying but it's taking it a step past i think where the district court and the lower courts were looking which is the fact that these attorneys had already obtained and provided to  to find these additional records they found they conducted a reasonable investigation and it's our position that they've found appropriate records they found a number of appropriate records would it have been helpful to find even more records is i think what you're asking no i guess i'm asking something else and i don't have as much experience with death penalty cases as the three of you did but it seems to me that if you're trying to convince the jury to go for life imprisonment rather than the death penalty and one of the key factors is this person going to be dangerous we know they're going to be in prison so the question is are they going to be dangerous and prison that it doesn't seem to me that it's sort of an additional record to find out how this person is adjusted in prison that it's kind of a really basic record and it's basic information if if you're if the defendant you know been an exemplary prisoner or hasn't been dangerous it seems to me it's like really basic information to give the jury i understand your point i think from from my perspective this is a case as you mentioned that moved very quickly and in that time they obtained a wealth of mitigation evidence it is always easy in hindsight to go back and say you should have attained this and this and this in addition to that which is why now at least fourteen fifteen years on from the trial there is always more digging to be done there's always more records that are going to come out there's always more avenues that could have been pursued the question is whether trial counsel made reasonable decisions acting as competent attorneys and and there is and whether there was evidence to overcome the presumption that they did and i think and in this case based on the evidence that was  less of a danger even you know in prison are there some other things you can just point to that you would view as having been you know testimony that supported reasonable trial strategy why it was reasonable in testimony fits in with the testimony that elicited from mr williams sisters and from his mother because and dr ling goes in more depth to talking about how beginning at age thirteen the schools and in the department of youth services are neutering to his mother that he needs intervention he needs help he needs to be seen and she continuously fails to follow through the worst and that she's apparently quite abusive  as well as the impact that mr williams father being absent had on mr williams he talks about how his mother mr williams mother's statements about his father and trying to distinguish them  distinguish them i can't think of the correct word but disparaging his father repeatedly the impact that it had on mr williams who as a child identified with his father loved his father and wanted to speak with him and the impact that separating him from his father refusing to allow his father contact with them if he had wanted any had and and this was part of the trial strategy that they talked about to to show how mr williams ended up at this point acknowledging that this crime is a horrific crime how someone could end up in a situation where they they did this and and trying to explain to the jury why this is not a situation that merited the death penalty and you think it's reasonable not to have called an expert on sexual deviancy or sexual abuse because so my understanding you think that would possibly other girls and children in the neighborhood and dr lane explains that this was possibly a result of having seen his mother walking in on his mother having intercourse with someone that she believed that  part of it or the i'm sorry the doctor lane believed that they could possibly partly be attributed to that and partly be attributed to to his background and the confusion he felt so this is part of a trial strategy to to explain to the jury how this happened and how this wasn't it wasn't his his fault this wasn't a conscious choice it was a result of decisions that were made about him by his mother to deprive him  he learns to make decisions for himself and himself alone and to blame other people when those decisions were bad and i see that my time has run out so i wouldn't give you a chance to address the summary of the jewish if you want to take a couple of the facts that interrogation was or might have been eminent when mr williams was shouting alan or alan hutton whatever whichever it might have been there is no supreme court case law that allows such an anticipatory indication of counsel and there's no question that while he may have been in custody we all agree he was in custody when he was handcuffed he was not in a custodial interrogation so the right to counsel had not yet attached so extending that intelligent waiver issue in my brief quite in depth so i won't i won't bore you without explanation i'm sure you're all very familiar with that issue and i do believe that the district court correctly analyzed this issue and asked to affirm thank you that there are did discuss at least can be interpreted by other district courts that that consul had your right to counsel attaches  becomes imminent i think one can read that into mcneil versus wisconsin the only the statement that made by by miss lois that was noted and get in response to a hypothetical question approach the idea of mitigation you obviously there's aggravating circumstances we know what they were right there there are the rape there's a burglary there's a robbery your mitigating factors are controlled by twenty nine twenty nine all four one through seven now if you look at six of them i don't see where they fit any of them fit in but if you look at twenty nine twenty nine zero four b three i believe it is that's sort of deals with the psychological profile of the defendant in whether he was unable to refrain from his actions which which could have been developed into a strategy for this case now i know we're looking at this after the fact but this was a situation that they had before that there's only those seven factors that you can argue you can't go in to mitigate say it was somebody else's fault that that this guy slipped through the to the cracks and therefore we we shouldn't blame him that doesn't sound like a sound strategy to me because it doesn't address any of the mitigation factors are not exclusive or they go up there and they're not but it's certainly you have a situation where you have all this potential evidence that if you have an expert talk to his mother who apparently somewhat tortured this young man him in the head with shovels used a belt to beat him and a father that was an alcoholic and abusive to his mother and to him to the point where he runs away by age twelve i think these may show were where the sexual deviance occurred and could be developed into a way solemn competent strategy i mean why can't that be a sound competent to decide not to go that route and have the testimony from a doctor elaine who does talk about the mother the two sisters come in and testified dr lay i mean month mothers and two sisters you know the way to think that that would give to a jury i think is very minimal you need you need a key versus oakum you need experts in mitigation and there's no way around it if it's that important and instead the word strategy to have constitutional means it must be perceived by a reasonable investigation and it cites strictly that did not happen in this case because cops will breach to do it to seek appropriate expert assistance and this case some of the criminal justice act in my book about that so we certainly would like to thank you as a court for taking on this case these are obviously cases of great importance and we know how much work goes into it on both