which contributed to the commission of crime tell me exactly why your theory is about why the left p m s matter and this may sound naive but i  the person a bottle of lithium and saying here take it is it is it an equal treatment given the nature of the mental condition that these people suffer from as to why it mattered i think there are basically two pro s to their mental defense one was that he had a mental disorder and the other part of it was that he had a treatable mental disorder which for which he did not receive proper treatment and that was a significant factor in contributing to the commission of the crime are they call the psych higher interest who could talk about the mental disorder but he was not properly qualified took let the in period of time after he was released from oregon state religion so that at that point he was willing to follow through with the conditions of his have those conditions include closer supervision of the medication and closer supervision and justin medication there is reason to believe that he would have followed through  since he had this disease and he wasn't treated properly he didn't follow through so that the reason that he didn't follow through is not necessarily that he was a bad person or that he was abused possible person but that he had a disease that would make mitigation is not here there's not a tax you can call a tactical decision if it's based upon failure to investigate and here here clearly there was no failure to and there was there was a complete failure to investigate also there's no testimony in the record by any of the defense attorneys that this was a tactical decision mental health is extremely important mental health issue in washington is an extremely important part of defense mitigation in a capital strenuous unsuccessful efforts to secure a medication for him while he was in morrigan was an extremely important failure and additional strong evidence of to investigate  favor actually seem pretty obvious that the reason they didn't object was because they thought this person was more likely to favor them than otherwise well no one has made that argument and that question wasn't asked to just think right and  and why isn't her on her her statement which she never attracted that she would feel resentful of the whole process why she said this was not enough  the lack of objection doesn't matter when it's here the state supreme court addressed that as a procedural bar absolute happy to take mystery much much more even less far less equivocal i would agree than then a call though i do believe in a footnote to be fair justice rehnquist says that's a factor that the court can consider although none of the lower co say it's actually a factor running in the other direction in this case and he clearly was unequivocal that the death penalty was proper in some cases he was able to follow the reasonable doubt standard and he has and is there any case that's approved  exclusion for death penalty reasons of a juror who favors the death penalty not that i know and he also indicated that he would impose death even if there was a life without possibility of parole on the table so he seemed to understand clearly his duty and deferential reading would be that she would have difficulty if the standard of the burden of proof was not met but i agree she said that one point i couldn't during that series of exchanges elsewhere in her testimony however she states she affirmed she could follow the you're having in mind the crime of which the defendant has been found guilty are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency that's what the jury supposed the jury realize this was a dangerous man this was a man who raped and tortured and innocent young woman for one reason and that reason is because he enjoyed doing it but you know that you know that from the nature of the crime not from his future told unclear contradictory in vague if you're told here is what you to consider consider exposing even more clearly they said you can only consider two things consider the crime and consider all the evidence a standard description that's not just for this purpose you can always consider all the evidence that's relevant to what you're just citing it is a proper instruction under the united states supreme court case i'm saying outside the death penalty always the jury  the circumstances of the crime more than our defendant and those are both proper factors undergrowth state law character of the defendant meaning and i mean the one thing that i've been able to think of th statute as far as i can town and that it doesn't tell the jury that they can consent they could have said you can consider everything and you just you know what matters and you make a decision that's what the case law is but that isn't what washington has chosen to do  question which is why future dangerousness is a factor before the jury i believe your honour's that as as judge burst on pointed out there was a discussion the court held that the defense had not really open the door to a verbal why do you have to open the door to the statute provides that that's a factor it is but it was not it was not presented in the state's case in chief and it was not presented each of dangerous the record in the trial i'm just asking whether that was something under the instructions under the that the jury could have considered it is not the jury was not specifically instructed on future dangerousness they were instructed on to question the single question having in mind the circumstances of the sounds and they were instructed on other matters such as the evidence they could consider but there was not any this is future dangerousness this is what it means propose would you not think that a jury deciding a death penalty case like this would be concerned about the nature of the individual and how he would support himself in the future a major factor in some some states it's the most important factor and the jury could consider that but they're not required to know but they could that would be a valid fact is saying they didn't label this challenge correctly there's no question what they're saying they're saying looking at these facts the judge came to the wrong conclusion that's what they're saying that's not an intrinsic no your honor visiting the facts do of the court read the facts incorrectly that's a disagreement with the judge's findings that's not an intrinsic challenge was an intrinsic there was something wrong with the fact finding process another word i'm painting my copy of the record aroun i don't think that's what people so he's not trying any particular mindset saying has to be severe is there something wrong with that well you ronnie you have to look at it as a whole i mean and on the things that the courts in your questionnaire and that's how we do it in the questionnaire it talks about beyond a shadow of a doubt and the prosecutor here went into a little further fields that he did not know washington have life without parole and that changed his opinion as to whether or not and yes he gave given a quick answer after saying i'd have to give it some thought  if they called someone else who said i'm available why do they need more of a continuance without even making one or two phone calls i don't know how many psychiatry there are who are experts and maybe  couple of questions to say who should we call but they had to start from the beginning with dr brinkley and they would have had to start with the beginning beginning with doctors b or c whoever it was they call so why do they his i mean his opinion was very strange because it was essentially the records don't show it all the chance of people didn't write it down doesn't mean for much of anything when they don't know when choice why couldn't they get it just as well as a psychologist that made the choice that they would rather go with the psychologist first because of the testing that would provide greater information for the defense to believe it's mr clement who was the second defense counsel indicated that they have withheld discovery of having to give information to the state until the start of the county phase very first or the very last thing she said that he could control his behavior if a police officer had been sitting in the car with her he can control the behavior enough not to choose her as the victim doctor sure thought it would be less likely if he was on with him that he committed would have committed these crimes she had no support for that opinion it was pure speculation there was no test to support that no studies to support that the literature supported that and she cannot say how less doctors sure admitted it and sadly she committed it in their cross examination and the evidence for your doctor sure admitted it and if that's  defendant has or just not have a significant history of prior criminal activities so maybe if they prove that he does they have negated the factor that he the mitigation factor that he does not another why do you think they've now eliminate the possibility that you could come but again i think the problem as i see it is that if there's evidence that comes in regardless of whether or not the defense presents mitigation evidence and the jury is not told what to do with it you know and this is considered by the w awful lot like i think california statute or and many other statutes and it went be confusing it all but i confusing is that this was a threat to the jury so they were just given a question and absolutely no idea  i just want to talk about the campbell case briefly that's different because in campbell the the issue is whether or not the statute was vague and allowed for standardless discretion in a different way and  nash case had argued that the washington supreme court's effort to cure that problem in broad harlem new was improper because you couldn't cure that type of problem by digital language that was argued to be objectionable in campbell was the language that the jury could consider any other relevant factors and the appellant in that case argued that that portion of the statute which is a different version of the statute than the one that we're talking about here i'd like to just go back to the ineffective assistance of issue and talking about the point in time when the defense was put on notice  in the point time when they the bells and whistles went off and they should have done something in this case months before trial they had possession of a record from oregon saying that this guy has a bipolar disorder or a mood disorder and that efforts were made to treat him with let them and they also knew from other records that following his release from oregon state the reason there  was inadequate they felt there was an adequate follow up on those treatment recommendations are maintained begin that months before trial because of the information they had at that time they should have known at that point that they needed to get a psychiatrist on board so essentially by failing to act when they were put on reasonable notice they left them selves check in terms of what they did and they seem to have made a decision on the psyche psychological testimony to do it in a certain order they first consulted somebody who they helped would come up with  out and then they ran up against the deadline so the question is if they moved everything back presumably they think they could have gotten it all on but in the federal evidentiary hearing there was a social worker who worked for the defense by the name of william and he testified that before before the trial long before the trial he had discussions with the defense team and it was pointed out in those discussions that you need a psychiatrist to talk about that you can't simply rely on the testimony of a clinical psychologist so they guessed wrong it was uninformed  explanation of the regions of the facts is the exaggerated behavior in the hyperactivity which is consistent with the mood disorder which is something the doctor sh because they never made the effort you know and in just why the failure of the continuance which was kind of a red herring to me because it's based upon inadequate information they're saying we have to pick between a continuance and getting in psychiatry but they didn't know at that point whether they would have been able to get a psychiatrist or not and so therefore they're making a tactical decision which is