the honorable the judges of the united states court of appeals for the th circuit oh yeah oh yeah oh yeah all persons having any manner or form of this desperate for the honor of all the united states court of appeals for the th circuit are admonish to get their attention for the court hearing and the ones they did interview they did not interview competently thus the p c r judge and the district court unreasonably founding concluded that trial counsel conducted a reasonable mitigation investigation regarding the prejudice prong p c r judge in the district court unreasonably founding concluded that the late witness testimony was cumulative marjorie he makes twenty four page sentencing hearing testimony of that twenty four pages eight pages or one rd of the testimony was devoted to explaining her expert qualifications and the methods she used the lay witness testimony presented at the p c our hearing would have precluded and changed the proud judge's findings of  running to flee sharif filings to refold with killing his brother that she didn't love them he also lied and told them that she was david the evidence presented at the p c our hearing through the late witnesses also established sharif mahdi's utter lack of parenting skills and inability to provide for mchale's basic needs leading mchale to have to fit in for him self on some occasions the late testimony particularly the teachers presented the uncharted the depths of the educational mcglenn sharif had towards mchale early in mchale's life there was  teachers also uncovered the depth of mchale's childhood depression when he was in the nd grade he said why doesn't somebody just shoot me if i had a gun i would shoot myself and then there was a complete failure of the family to provide mchale with a psychiatric treatment that was recommended by the school officials between the nd and rd grade mikael learned about the law and that his father sharif  podium and learned that his mother was in fact alive but the reunification went horribly wrong mchale watched his father beat his mother she had to run into the woods and then he witnessed returned to the rd grade his teacher said he was withdrawn it's not surprising after the traumatic summer that he just endured mara harris the teacher watched mchale to begin to thrive in her classroom when he had the structure that she was able to provide and also when he was away from the toxic environment provided by sharif because this point mchale was still living in baltimore but even baltimore wasn't a happy place and successful place for mchale we already talked about him not getting the psychiatric care that was recommended following the nd grade there's also the kinda fifteen minute beating that you say ms ham make the social worker testified to or included in her written reports that was inaccurate well it depends upon what you mean by inaccurate i mean the trial judge in his in a scene order was allowed to conclude bat mchale well i mean is there anything that she testified to or put in her written reports that was not factually correct what she her written report painted a picture of a child who had supportive parents and didn't witness violence didn't experience of violence  finally interviewed and asked the question testified that it was you know sharif that was the architect of that standoff and so the question is whether or marjorie hammy painted an accurate picture for the jurors well i'm sorry for the trial judge and soon i'm saying that report is very conclusory very summary was not even report because it's just fifteen pages of testimony in the pages of an exhibit that provided none of this detailed and specific information about childhood in significant way the judge's findings incentives thing would have been different if this evidence had been presented to the judge could not have failed as he did about miss mchale's role in the stand all because of what you share would lead testified if he could for all and she witnessed the sadness the very deep sadness and depression but yet she said he had at that point in his life the ability to succeed and even do well in the world but she also witnessed firsthand the brunt of sharif and how he thorpe did and prevented her efforts as a special education teacher to bring mchale into a the the supposed home schooling i have nothing against homeschooling but this was a home schooling this was mchale's father sharif going on re us about politics and religion  and his racial hatred or white people it involved you know mchale's father teaching mchale and sharif violence and survival skills and taught him how to now correct that's absolutely correct gregory it also gives you point is that the reason why i have judged understandably so could city that he saw no humanity because the only thing it was left with was the horrible right judge gregory niggas back to the point that i made earlier that the judges suzyn order begins at age fourteen when mchale's incarcerations in juvenile institutions began it begins after calle has gone through all of this childhood trauma witnessing the violence experience of violence and self being yanked out of school and being indoctrinated into this type of you know hatred and militant kind of wife style i mean this is a child who never had it changes from the day he was born and by the time he was fourteen and in juvenile institutions he was already severely broken person and there is a direct line from this violence in the perpetrated by sharif imadi used early childhood that runs through him going to the institutions and then when he comes out of the institutions totally lacking the skills to survive in society and it was unfortunately sadly you've compared the lay witnesses and to miss hammocks fifteen pages of testimony and i'm just asking sort of more generally don't we have to compare the because it's a fair to investigate claim not a fair to present to miss hannay but don't we have to we should we can pair the new evidence which you describe as this new audience from those the lay witnesses against all the information that was known to you know from from the we have to compare to whether it's it's repetitive of the information that d they did develop not just what they chose to present well i think the that there's several parts to your question and you know one is it could be ineffective assistance of counsel alone to have the information and not have a strategic decision not to resent it and is aware so that's a good point what framework right because you're saying it's we're comparing the seven to miss hammond right up and you say well yes there is this other information that was not presented you know miss miss i think it's mine i'm a over her name wrong  did you know got school records taught the school officials did this you know background mitigation investigation and got this information not all of that was presented to the proc or but the lawyers had well in the lawyer in the lawyers didn't even present it all to ms hammett because her testimony talks about all readings summaries of some of it but the testimony is that the teacher i don't understand that but what what i'm trying to say what i'm trying to understand is don't we have to look at whether these seven new witnesses that you would benefit by whether they are cumulative of the information that had been developed in total not just what was presented but what all of the information that m munden actually half because that's the scope of the investigation that was done right and if it's a fair to investigate claim we have to compare the new information against what was investigated no i'm wrong about that well they did an interview i see my time's up can i don't you know nancy there there's there's no evidence in the record that they interviewed the teachers and in fact the evidence in the record is that they didn't interview the going out and looking for as many teachers as you can find that knew the person when he was as a child and there was there was no effort to to interview these teachers and learn the powerful mitigations stories that they were able to talk about a child who was still you know full of humanity and hope and potential in life and this is not cumulative to either the testimony or the initial investigation pled guilty to a judge the whole thing just to explain the whole profile of the person so it is hard to separate i know exactly understand just richardson's question about the whole  right and you know as the supreme court has said it you know context of juvenile cases you know the child has no choice and no ability to remove them from the situation the arabs in the family predate or and this just is tragic and you make a good point that you know that the judge didn't have any information from a different findings that he did and because that court i just want to pick up on the conversation that we're having this morning because what stands out to meet us we're missing is still we're talking about trial but we're not talking are we're talking about trial investigation slightly mostly presentation and not about p c r investigation and presentation i think we need to back up here because this is not just another collateral action this is not an opportunity to go in a different direction haiti is is supposed to address extreme malfunctions and the system and we're her day because of choices the choice that mr mahdi may be sensed before judge human the choices that p c r council may based on a very intense investigation and what they decided not to exhaust properly exhaust not the take to the state supreme court in the p c r people there are a lot of choices here that inform this particular conversation and we're talking this morning about what could have been down differently in presentation or what could have been done differently or a few witnesses here or there that are different does not may trial counsel and reasonable investigation presentation and it does not if something good fit on the martinez does not make peace the arkansas ineffective i think going back just a little bit and and seventy hours investigating anticipate itself in the five hours more she traveled to virginia she traveled to binzel they knew she traveled to baltimore she interviewed them when she spoke with and the attorneys and press conviction really also said that they had traveled to north carolina they had spoken to the defense up to see him up there in fact they had gotten a continuance to be better able to go over what the north carolina team had in addition to all of these hours and hours of interviews that their mitigation has now on top of that even though they were trying to tell us they were limitations because at the time i'm talking own grandmother he wanted to talk about the accomplishments of other family members now what that would have done as was explained imposed conviction belie was to show that you had family members who were doing very well the brother in the army doing very well other family members who had gone down i the league schools and let's keep in mind mr mahdi was testing at over one hundred i q i think the last test was one hundred and eighteen i q he's competent and there was no expression for this murder other than to take a cohort to take weapons many talk about trying to tie all of this investigations in the context of the crime what we see in the end result is that by not by the age of twenty one mr mart armor by whether or not there was evidence that may justify the sentence of death and if he did something horrible the question here is whether or not there are things that were left  the judge put it quite clearly and what you talk about is the other members doing well from a good is a good lawyer a trial lawyer you take that that punctuates that punctuates the trauma and the difference of what do you do to explain the person and you say we only have a man to jerk that is the natural thing that was left to the core but believe me things that happen in your childhood fall into basements and i think in a psychologist will tell you this and with in terms of trauma in childhood you just don't wake up and go from depression cheer up and that trauma it stays with me so i mean i mean so again i just don't see you address in the question here before and that is one of the women if you don't put it and i know that's all you have left that there was a little more to investigate to talk to these teachers is just no way that could have made a difference don't you say yes your argument i don't think it's a reason probability it would have made a difference based on the fact that he was given evidence of the trauma that mishandling testifies that he goes into focus and i maul the generational legacy a grief trauma resilience wrist these are the factors your honor had mentioned and he goes into that he's points out cultural and racial relations and in his own testimony and post conviction when he looked at the story of martin's life and influence so all of this was late the and what we found is that there was a lot of bad coming in with a little bit of good now does that mean you can't present the good obviously do not there was trauma presented in the trial itself and keep in the i ask a maybe a factual question we i was talking with your colleague a minute ago about miss mine and i believe you referenced her discussions with school officials and school records were there others in the investigation the psychologist psychologist the social worker whoever it was during the trial that would have included the two psychiatry and psychologist that they had for the trial as well that they did not leave because there was nothing there that was helpful you remember is not a memory test but which were the two that they used  those with the da and i just did not have something that would be beneficial to present and what they came to the conclusion of was antisocial personality disorder which goes back to the dear man that's not helpful before either a judge or jury that they were not presented so if you have a kind of a related factual question there was a fair amount of evidence and  testimony of trial counsel psychiatrists psychologists there was a a conclusion from those interviews that the aggravating evidence that those family members would have brought in to the proceeding far outweighed any mitigating effect is that is that accurate and at what  level was that decision made yes or that is accurate and that the decision not to call some of the family members was made for senate saying and at that time that would have come down were actually those people that gave information that counsel did not want to use for instance one uncle that mr mahdi went to look we have actually charm mr mahdi a demon and that the did not want that kind of for yes or of abuse of discretion standard and the abuse of discretion argument that mr modi puts for it as that there was an incorrect legal structure used and he's relying on a guest as and one of the biggest problems he has with that argument your honor is that yes it is did not change the statute this statute or if i'm not a nun still it has reasonably necessary applied has nothing to do it is that you know after that case was a test that caused a court to look at whether something was substantial and the court and yesterday's the supreme court looked at that and said there may be a bit of a difference it's arguably a bit paul did that can be reasonably necessary to investigate another line of information that was the tipping one that was not done here the claim was not prejudged and there was no consideration of the procedural default at that point this was merely investigation and yesterday's can't apply because he was given money twice this is the rd request that was denied your honor by the same vein for the same type of mitigation evidence and what was being requested was basically a person to create another theme of the presentation of the information that was already of ten and that is to become to have you know you come here and you are you know if you know and you're talking about finding a lawyer a very important part of this person's job of this job good and then many cases that talk about children are different and you can expect  know that i don't know that that's why the question is why wasn't you know chance of finding you know and i know you're very smart lawyer but i don't think that you know everything about what an expert might find out when they look at the records i certainly don't know when a person's life is on the balance here is not just a matter of just of who is saying it would have made a difference quite simulink they were bereft of it that you talk about you know my goodness  case where nobody in their family was put all no one i mean my goodness you say my good is that no one cares whether or not this person lives with and everything a person times to consider whether something is going to meet a certain standard and while none of us may know one hundred percent on what a jury or a juror are judge may find important we do know that there is structure to the judicial system and we do know that haiti is not and just for him to create another me and your honor that's what i rely on the state of south carolina allow mr madi funding and well qualified as injection relief counsel people who have experienced over thirty cases for one or your fifteen capital cases for another investigative tools money time presentation that's you your honor why we can say the funding is difficult did at this time even after it was opened and a large part of the district and i think your hon gregory the government talked about claims p c r claims that were not presented to the state court supreme court in chief judge you mentioned martinez but i want to note for the record that every single factual account that i gave him my st argument in every story that i told in the st part of my argument was matter that was presented through lay witnesses at the p c or hearing and is part of the claim behaviors climbing that everyone agrees is not defaulted that's whether or not lay witness testimony would have changed the outcome of the sentencing hearing and even when i talk about mchale mani's deep depression in my opening argument i wasn't talking about anything of psychiatry or psychologist or social worker said i talk about what teachers observe when they look into mchale maudie's ariz what people heard when they said when the kill mahdi said that he wanted to have a gun from a police officer to kill himself that woman kill madi was asked what is your you know one wish in life for my family to be reunited and when that person probably realizing that that was to jump off a bridge to shoot myself or to use my own errors to kill myself and while i'm a heart of hearts i would like for this court to find a payoff to consider some of the the tiriel that were not presented some of the claims that were not presented to the south carolina supreme court even if you don't find their pair testimony that was presented by these these capable piece your lawyers ask you i want to go back to our discussion in your opening presentation we were talking about ms hammock and i went back and looked at her testimony and she told the sentencing judge that mr has been traumatized throughout his entire life and that he's had an impact on his own ability to make good choices to have a good sense of himself and to behave according to societal norms he's a young man who's been abused  he suffers from abandonment he's never been exposed to the right can of socialisation his poor self esteem he has a poor history of school progress a poor sense of self he was middle acted he was abandoned he suffered from poor parenting and was likely to end up in a situation where he's out of control and it does damage to himself and others he never really had a chance to develop is any of that inaccurate i think that's accurate  judge on but those are only conclusions you know part of the claim that was presented to the state supreme court was that this fact what are the facts that are on the line man was not investigated and presented and that those forty stories are engineered into our d n a they have affairs on people who are listening to the stories the factual information was of course those conclusions was not there also look back at miss cam expressed the money while the state was arguing and it was a very narrow list of witnesses that she interviewed and on page fifty nine and six of with his js that yes it may be true that bet you cause as you say a conclusion trauma but to say it's trauma and not explain what it is oh i mean trauma could be a myth it ranges from well you know progress i'll just call that who progress is just put a label on something as we all know we said oftentimes they're all counsel it was just these conclusions are has been nothing then you need something there where come from i think that came from family members lay witness testimony right leg witness testimony just to say oh i talked to the whole and nothing else nothing was redeem that's just so i'm clear i just want to get a both on to the record this is a of the record to go through perhaps asking for a little help or did any of the seven lay witnesses that that we mainly been talking about today did any of those seven talk about the the reunion with the mother well i think it came from a chance that testified it hearing and that that was part of the family background that was presented to the p c r judge and presented his background to the state supreme court in the direct appeal though those are the witnesses that mrs munt had talked to both before the drop but that information was not present  martina's triviality you this corpse opinion in june of her you definitely have to look at that statute differently and the case that the district court relied  on right right mom is is is is outdated i mean i don't criticize it for when it was decided at the time but but key component of that case was the inability to expand the record that we now have with martinez and i think your honor makes a good point that you don't really know what's going to happen to you in best again and i know things are changing because we have a capital havey use unit be informed now on the th circuit but at the time when you're trying to put a budget together for how you're going to handle one of these cases at that point even the lawyers even though you were informed  by your review of the case you don't know where things are going to lead until you start doing the investigation and that's what happened here and that's why we made our motion for that type of funding at this stage that we did  information that we provided to the district court on here is you know a proffer of a separate claim that we would have been able to raise if the funding panned out and the expert was able to