so why should we set about second guessing the determination that judge savage made judge savage having participated from the beginning in the trial through verdict and postering motions and through the p c or a proceeding having watched that jury through selection and through wife's yes abuse and what we know is that the jury heard want to answer from my client's mother honest williams mother on cross examination of from the prosecutor when the prosecutor said you did abuse your son did you and she said no i didn't but my husband well you said a few moments ago it is a promise that the judge made a determination that there was no evidence of abuse and you stopped that you didn't see abuse of mr williams you just said abuse evidence wasn't abusive household it was an abuse of the house although it was an abusive household as we presented in post conviction mr williams was abused by his mother and his father and b use of anyone within the house or not other than the one question asked by a prosecutor on cross examination well none other than one is still so well sure but i think the court needs to measure the wrong and this is analogous to the what happened in the porter case the florida supreme court reporter did not consider or on reasonably discounted that's the supreme court's words you united states supreme court's words expert testimony of one doctor did judge sather did exactly the say we presented three mental health experts and post conviction and judge savage did not even discuss one of those experts at all and now the doctor castle  between an implicit finding and simply speculation there is absolutely no evidence from which any jurist can conclude that you are saveth actually consider the testimony of the castle and more importantly when you look at sears that i haven't done the math but yes it was somewhat after the time i don't dispute that all right ok now is it true and i think it is that what well then i know you are faced with the the terrible evidence about the the home invasion of dorfman of which he was found guilty and the door for him and murder which occurred about the same time when he was found guilty of third degree murder now i know what it is there i thought this and i think that's that's a very pertinent question this whole concept of a dual life so are some of the mitigating evidence would have either bought the bad evidence was already had but the mitigating evidence the commonwealth argues and the and judge savage found it savage said that some of this evidence would have been helpful because it would have shown that mr williams directed his hurt on to others in the pennsylvania supreme court ind all kinds of very bizarre sexual abuse of animals and people and there you said thomas mental health history x is a common thread that ties all of the evidence together and thomas cook episode the jury heard in a no i'm talking about this like at ricks and psychological evidence that i want to anybody use the opening the door term in their briefing right in the old days that's what we call that that by virtue of presenting the psychiatric and or psychological evidence that was not presented here the commonwealth would have from what offered the damaging material that stemmed from  the fact that some of it may not have been helpful doesn't mean it should not have been present competent counsel takes the common thread if you're on a seven in thomas and wraps it all together and explains not only the capital offense but the prior offense it's judge judge ellis or really hit the nail on the head with what the inquiry is and has to be what is it here that would have been presented were could have been presented that would have caused that one juror to suddenly turn around what was it in the nature of any or some of that yeah  mean that that you know respectfully is not a hard question for me to answer what would have been presented is a history that terrance williams was savagely abused by his his mother his stepfather his mother other who said the first time she was called to i would love to be up in front of a cure or a defense counsel as be up in front of a jury and have that kind of diametrically opposed impeachment material to hammer away at the mother suddenly becomes absolutely yes how does one impeach the communal report showing that mr williams was psychotic ten months before the cap and trial and how does one let me let me do their dr camille concluded that williams was competent to be sentenced in the third degree murder case that's right you know that he was icon hill and suffering from paranoid delusions and all  breaks just because you're a little bit tense in prison you have psychotic breaks as a result of longstanding mental health problems doctor dr calvin testified this was the classic sign of a person suffering from posttraumatic stress disorder as a to his psychiatrist that he had any psychiatric history ok the doctor also said that his judgment making a stressful situation without regards for the consequences of his behavior that's how that's how traumatized people behave that that's what our expert said traumatise people act that way all of that could have been explained if the court is questioning whether it could have been impeachment because mr williams reported as mr lewis did in the lewis case which george smith was also on in that case the court this court was abusive and impoverished we have the the dorfman pre sentence investigation showing the same and we have department of corrections records showing that mr williams was given psychiatric medication pretrial while he was incarcerated on a prior offense related to his anxiety is depression is insomnia and his other symptoms so we have many things that are going to follow up with all of that council going back to dr camille all of us really are called upon to use well as the judge's in the in reach we pursued to engage in the hypothetical the what is says and had the tourney done as he should at the risk of sounding like sounding with chemical what would have to be statutory here but it was a long time ago but i tried case harp i've tried these cases would move into doesn't it strike you as extraordinary that presented with a root a kind of factor is age this jury didn't give him benefit that is mitigate that that's that's extreme but that there's a difference between giving the benefit out and finding the jury's failure to find as a fact that he was young i think is a reflection of the poor performance of counsel had they found that he was young but then waited and decided it didn't make a difference that would perhaps be more of a reflection of what they thought of mr williams but let me answer your honest question  concerning any mental impairment at the time of the murder what have surface given the valuations statement that the defendant denied any past psychiatric history  that's the supreme court you keep referring to the dissenting opinion and that is the majority of her sure and yeah you know mentally ill people often than i that they have had pennsylvania supreme court the pennsylvania supreme court credited judge savitz finding that the mental health opinions and this is important at the mental health opinions wouldn't benefit mr williams because of the negative aspects of me he projected his hurt on others that's not a finding that is a philosophy a philosophical position which is what justice ever said which i think is correct they say they credited the mental health experts of pennsylvania supreme court said we believe what they say but it wouldn't have helped in prejudice because of the double edged sword that's that's what's key here this isn't a question of fact finding that you have to defer to although if you did i think you could easily say it's not based on anything in the record what they did here was they they took this finding and turned it into a legal question and said well this wouldn't have helped him he could have met the prejudice burden because of the double edged nature of it and the supreme court  rejected judge smith you've rejected it it's rejection of all it's not the law if it penry says it you've said it sears says it i say it it's it is it is simply not the law and i don't think there's much debate about that and i'm glad you're out of brought up the question of the of the burden and the standard here the pennsylvania supreme court applied an incorrect standard nothing they said flowing from that should really bother this court and doesn't deserve any deference the standard of course being a heavy briefing we were well beyond the yes time described but this is an important case and i don't want to hinder either side syllabi ask you to wrap it up at this point of course turned that into this this idea that you know what he found would not have been helpful it wasn't the judge savage said i don't believe that the label is is it wasn't that judge savage said i don't believe the mental health experts what he said was none of that would have made a difference because of the dual edged nature of that testimony and as i said the supreme court has said that's that's not a proper analysis when you move on to the batson claim quick quickly please  were really to objection to opinions which then leads to the question i have what more could mr pounder have done at the time under the circumstances i use i he could have objected don't think discrimination is at work what if i think discrimination is at work after the six tries is i mean i've weighed the first five i think this idea of a contemporaneous objection requires that the trial court be put on notice and as  said in both instances he's aware of this issue he's following it he kept his own notes of the race not anything else of the race of an irate he knew who was struck and he knew what their race and genders were and he you know basically accepted or i see should say he suggested that this should it's already that she wasn't using race and she said of course not and he said fine i understand that's your position let's let's move on handwritten notes i have to tell you are going to lawyer for thirty one years i've never had to examine a witness who was looking at a piece of paper and i didn't get to see that piece of paper well i have in all my years never been aware and i'm inviting you to provide me with the authority have it of a case that has directed that a prosecutor should turn over notes made during the course to the prosecutor turned over some of them may have been voluntary that was my next my next point is that this is usually not very hotly debated that's and requires an inquiry into the prosecutor state of mind i cannot fathom a privilege that would protect a an attorney's written notes that evidence state of mind when state of mind is at issue if it turned out that this was a fraud but if an attorney is accused of committing a fraud now have notes about that fraud they can protect those notes saying well  is referring to the notes this wasn't some review done in the abstract may i have those notes your honor no you may not the witness was on the stand she was referring to that i mean i do process required any any fundamental notion of due process requires that the litigants in the case being asked to call back many years and we all appreciate that so what they do look at their transcript they think they come up with with reasons oh in my practice i would have stricken up to a person of this particular qualification and determination that there was nothing problematic if you don't have a second guess because the law is very clear harris versus nelson which is the grandfather of hades discovery cases three ninety four u s a two well we are but you know then the court has to ask are they protected in any way and i think i just explained why the justice i think i'm state of mind is at issue and i want to make the point that the pennsylvania supreme court in denying me discovery and this is a footnote ten of their opinion one ninety five in the appendix they apply the p c r a discovery standard which requires exceptional circumstances judge out a certain would you like to ask a question on the issue that we've been discussing relative to that's and generally or the syrians yes i would just the two things these are notes i'm going to turn and second in addition to the the court examining the notes and making the decision that and i and i think that that is significant it's like well if i can respond to those those observations your child assert that requires me to assume that the summary  actual notes and it's an accurate summary it also completely guts in my view the privilege that might attend these notes because if i'm entitled to see the summary why can't i see the notes and thirdly right requires it requires all of us to assume not to know it's who assume in a capital case the judge savage in a proper in camera that he looks for the kinds of things that i would have looked for and i don't think you can make that assumption that's why we have lawyers  judge read these notes of the district attorney and said it was not necessary to release them  my eye like the fence lawyer i looking at these notes rather than the trial judge matsch a different perspective and i think under these circumstances where the witness has the mineral hands and is looking down at them as she testifies that due process and fair hearing requires i get to see if i may stop you right there what what quality do this could lead do the judges of this court notes which she was testifying from directly at that hearing as well as her full notes and of course he had been the trial judge i believe it was twelve years before and  found that her summary of her notes was in fact accurate and that there was nothing more in her wrong notes that page ten forty five the level and yes your honor thank you did what did she refer to her original notes was actually referring to when she was testifying right i believe she was referring to her summary of course i wasn't there so i'm not absolutely certain i of course her summary was prepared from her notes and so then the question becomes is there any difference why did you do what's that and that's why the in camera hearing occurred of course mr wiseman did pointed out the time and it was an issue that came up but judge savage was meticulous about all of this and as he was throughout the entire hearing he allowed unlimited development of evidence at this hearing which was as you know not only about the the batson claim and the ineffectiveness claim but all of the other claims that were raised in the gargantuan i have to say p c or a petitions multiple one strike the second strike as to which there was a contemporaneous objection but he was absolutely correct to up hold the state court credibility finding a credibility based finding that there was no discrimination  as you know judge savage who was the trial judge at the time ruled that there was no discrimination occurring and then twelve years later after a full reconstruction hearing ruled that there was no discrimination and he strike and we were talking about i'm sorry the second strike was the only strike as to which there was a contemporaneous objection but there was a second mention of the issue i can i don't think that can be construed as a second raising of racial discrimination claim the second time it was mentioned it was because petitioner himself was a very active participant in his own trial had instructed mr pena relative be nastier to andrea folks the prosecutor and mr p the record as he did with many such instructions from his client and he said as your honor knows i will politely and not in a nasty fashion make objection such as i did earlier to the second strike at which time judge sabot being folks was still not discriminating is in his opinion this prosecutor used fewer still edges than she could have a sixteen out of twenty and the pursuer you move off of contemporary in these objection so i take it your position and the there was there was a finding of no discrimination at step three for all five of them and the district invited supplemental briefing on steps two and three and we went ahead and did that and he found that there were absolutely clear record reasons for those strikes showing that there was no discrimination at work so i think that's that's where we are and i think that that leads to  judge bell since finding that the denial of the claim was reasonable by the state court no evidence at trial to support it which is both white nobody knows why an accomplice instruction and here is not really what this issue comes down to and yet is what we have is a stra instruction isn't a point of law which has no supporting evidence exactly so that the question really becomes what effect if any should be given to that stray exactly and the the inquiry is whether there's any possibility you know that whether there's a possibility that the jury could have found him guilty of first degree murder exactly huge gulf between the two again right so that this is this is there is no possibility that a reasonable juror let alone a reasonable jury could have could have found that they would have had to make up evidence and the prosecutor at no time am i correct in either the opening statement closing argument or otherwise suggested an accomplice theory as the basis upon which the prosecution was going forward that is correct now my opponents have argued that she was content to have the jury arrest its verdict on accomplice liability simply because in distinguishing in her closing argument between direct and circumstantial evidence she s peaks about the circumstantial evidence before she speaks about the direct evidence but that's absolutely false it's not she was not content to have the jury rest its verdict on accomplice liability explicitly invoke accomplice liability and no she does not she's simply saying the circumstantial evidence we have here is weighty and in addition you have the direct evidence the direct testimony of ronald rucker attune terrance williams confessed and showed the blood the shoes and mark draper who was also really guilty of first although we gave him a deal for second he confessed to being guilty of first if there was no no argument for accompli liability and certainly certainly if this stray instruction could be construed as an error because there was no evidence to support it and  was absolutely harmless there's no possibility no substantial or injurious effect on the jury's verdict here as the district court probably found nobody knows why this is from she was given it was extraneous unless your honour's have any other questions on that i think perhaps we should move on to the ineffectiveness limits you have ten minutes left there's there's a total silence there is there is on this i think it is a problem i don't believe so your honor this was a lengthy p c or a evidentiary hearing and one can always point to something the court didn't mention it's it's clear that he disagreed he did not credit the findings of all three experts which were very very similar one can view what she said as covered by some of the specific findings he made about some of the other experts findings but it's also clear that he didn't need to make explicit credibility findings in order  for them to be regarded as binding factual findings of the state court this court upholds implicit credibility determinations and factual findings as well as explicit ones it's not only taylor versus and the presumption of correctness as explicit ones clearly the state court has to be given the benefit of the doubt and judge savage couldn't have mentioned every single thing that was your argument is because it was so extensive and it was it was discussed at the hearing ad nauseum the fact that this name actually wasn't mentioned should be inconsequential absolutely as as judge wilson found his findings his conclusions are that perhaps his opinion was it was a little bit you know shorter than it might have been prophecy edited something out that doesn't make it unreasonable that doesn't take away the presumption of correctness it was reasonable now of materials that would have made it worse for williams had he taken the strategy including a mental health report much closer to the time of the murder two months before the murder that is heller's report versus their dr kamil report which was eight months after the murder and it explicitly says that he has a condition that could have lasted for no more than six months so it could not have existed at the time of the rightly that it could have been related to the stress of his present incarceration it was his birthday after all he just had a and a son and in our i'm sorry daughter an infant daughter and he had just been found guilty of one murder and he was facing a capital murder trial coming up and then we have a couple of months later his prison counselor explaining that all of this newspaper coverage of him being a gay prostitute in prison meant that he was getting pressure for gay sex in prison i mean of course he was feeling pressure  so the district court i believe correctly of course found that there was that there was no prejudice given this harmful material that the sort of backfire material that we  would definitely have introduced but i think it erred in in not finding that counsel's performance was reasonable here simply because mr pounder rela clearly knew that that not too much evidence come in about the other cases and he said he talked about the duality of evidence and then in the post trial motions in the post trial hearings he talked about the repetitive of events and were he was quite general and they get his answers because the questions that were asked of him at the time and also during p c r eight were quite general and vague and he wasn't particularly refreshing his memory of events but nonetheless that reference shows and his saying that he was familiar with the prior cases shows that he knew that there was a bevy of community members who came in to testify this guy had a loving family that implies no testimony also suggested that he believed it to have been william's responsibility to name the muster them and provide them to him as counsel i do believe that it's ambiguous as to whether he was saying that he didn't know the had any interest to have tried cases know darn well that the only way to build trust is to meet that client well before the big trial although that could well be and perhaps his approach of of having his attorney associates meet with them and having correspondence back and forth and investigating all the witnesses he gave him months before trial months before meeting him indeed out was not the ideal one but i don't think that it in any way violates the prevailing  standards which do speak in terms of communication not in terms of a face to face meeting but in any event i think i think what we have to go down to come come back to here is that we would have put on a ton of evidence that would made would have made this you know mental illness and abuse approach absolutely counterproductive and it and my  says it all came in here would have been a bad acts evidence i disagree completely that's not true we would have brought in that the community member testimony in the prior cases that he came from a loving family background  was a leader from teachers and coaches and neighbors and family members the three good prior mental health reports including the one closest to the crime from dr heller which was by the way  after this armed robbery and he did he kept attending classes after that trial he was he was let out on on bail when he was arrested and after he was found guilty he was let out on bail  elaborate excuses to distance himself from the crimes and that dovetail perfectly with his excuses in this case to distance himself from the crimes in durham and he was caught literally red handed with the rouge on the back and he said well i was really just literally holding the bag for the other guy and it had rouge on it in the how milton case he wrote what he called the jealous you know i loved you on the mirror which pointed to antonio the roommate of draper of cheney who he knew you know had lived with and loved hamilton before hamilton had switched over to williams in the house and case the portions of his imprisoned nose to draper that were  did not come out in the norwood case so they did not none of this came out a trying to get draper to change his story on that case in hamilton has similar attempts not only to burn the corpse which did come out but also a similar types to to take the car as with norwood to cast aspersions on draper by making up a story about rape or having gay sex and cheat at cheney and wanting to go and retrieve you know naked photos from the trunk and he's using hamilton's credit card and the calling card just like he did with norwood and even the fact that that he called one girl his girlfriend in the norwood case and a different one in the how milton case and the she didn't  an end in the norwood cases lying to his friends and to police and then to his experts and p c r a about being stabbed when jogging in january of one thousand nine hundred four he said he was mugged as he was jogging to explain the injuries the knife injuries that he had when actually of course those marks were from his first murder victim herbert how many letters later said that himself right that's correct so he made up another story about that he said oh actually i was making up the story about being mugged that's what he told one of his experts hired by the federal defenders if you're on earth in every case counsel could always have done more of course and always could done things differently and no second time signature murderer on scholarship is ever happy with a death sentence especially not want to write op eds for the daily news or raises by the way a claim like this this claim was first raised by petitioner himself pro backfired it's clear would have been harmful there is no reasonable probability that this would have made a difference i think it's absolutely wrong to say that the press of a supreme court apply the wrong standard decided stric counsel presented such evidence during the penalty phase there was a reasonable probability that appellant would have received a life sentence and although it did talk about in other places  you know the heavy burden to show prejudice in a case like this it is a heavy burden not only because of the strength of the aggravating evidence but also because there is to a degree that neither of the state coors huge entirely cleanly to the language of strictly i would agree that they were a little bit vague in the way that they what about it but i believe that they cited it and that they're their findings they than using the traditional three step yes your honor i don't think there is really that i don't think there's anything unreasonable about that approach and  b s unit yes funded by now yes or on it which our we are absolutely out matched in terms of spending in terms of numbers and we certainly don't have the resources to hire the number of experts so my point is of course want there to be a per se world that we have to call the same number of experts as they do or some such it comes down to mccullough versus maryland the power to tax is the power to make policy the federal government provides a lot more tax dollars to undo these cases than the city does to uphold them it's just a matter of how much money we have to spend thank you thank you happily and from a loving stable home they would have presented a ton of evidence that effect but how do you explain that he tried to burn bodies how do you explain that he goes to a home with rouge covering half of his body and terrorize an elderly couple and how do you explain that the seat their own brief says he was leading a double life we agree that he was a bright young promising athlete who came from a overwhelmingly abusive background and suffer from mental illness this is exactly like sears in sears the trial presentation was that it is the same closing argument for the prosecution and sears and in williams in both cases the prosecution made the argument this is a person who comes from a privileged background and what the supreme court said is if counsel didn't do the investigation to uncover the abuse and the mental illness that was extant in that person's background then then prejudice is established prejudice is a savage and so the fact that they could have presented tons of evidence or as they put it in a district court the truth doesn't matter because we could rebutted the truth with with this evidence of of a stable home life that's simply rejected by the supreme court and sears a few other points on an ineffectiveness if i might  you know i feel of course as a citizen of the commonwealth sorry for the plight of the city of philadelphia is in financially that's not just the williams problem that the truth of the matter is is that we senate mental health evidence that they haven't  four and i want this point to be clear if you look at page one ninety eight of the appendix it's the pennsylvania supreme court's decision or comments on the expert testimony what they say is the p c r a court weighing this expert testimony in context of the entire proceeding along with the record before it concluded it was outweighed by testimony from the same experts that appellant directed this heard on to other people and that's a sort of adoption of what judge savage and i'm sorry i quickly scattered knots appendix page three nine zero four zero five three nine five one through five six three ninety six four three nine seven two seven three seven five three seven seven are all portions where where the prosecutor said she was referring to her specific contemporaneous notes and not the summary now i think the point i want to make on the accomplice instruction is that i understand that mr williams  did not admit some participation however he a reasonable juror looking at his testimony could have concluded that he was culpable he had proceeds of the route i can just imagine what your position as defense counsel would be if it were the commonwealth arguing that that evidence was sufficient to get them past murder i would say was the first reasonable thing he said today seriously seriously  doubt the that the test here is was there evidence before the fact finder upon which they could have concluded that he was culpable of the robbery and not the murder having the proceeds of the crime having acknowledged that he got into the car having acknowledged that he was aware that the the victim was duped into the car all those types of things that we cited in our brief i mean the arguments action could have led a reasonable finger at each other when you have two people pointing the finger the jury has to decide who's telling the truth here and that's why this instruction is harmful i appreciated the court's indulgence thank you thank you very much exemplary job in this matter both in briefing and in their presentations here today and we all know how difficult these cases are i referred  early to morrow prior experience with these cases and that certainly informs my view as to their difficulty at this stage as well not only because of the of matters like this but mostly because of the subject matter capitol hill these cases are extraordinary and they're very difficult and so we thank both sides for their advocacy here the gentleman would ask that counsel conferring cooperate please with respect to having a transcript prepared of these proceedings that we will then have recourse to as we take the matter under advisement judge although certainly i assume that you remain acca ready