i have a suggestion you don't have to accept it but the panel would like to hear the commonwealth's appeal first another one to hear your side of the case and your response and then whatever  that's fine i don't know what we do if it wasn't agreeable we may have assert executive privilege and make a decision we'll proceed with the commonwealth appeal  the with respect to the sentencing phase on the jury instruction claim and the ineffectiveness claim for failure to investigate and present mitigating evidence let me go first to the mills claim since the briefing act the jury instructions and species act are very similar to those in this case i'm not going to spend a lot of time on the actual language because that's something this that that's just apparent on the record they're quite similar  george exactly i mean they would be opposing counsel makes the argument that they're different i think that's a strange argument and i think they speak for themselves i think what we're left with is the question of standard of review reading i believe essentially it's it's not in in species act there was similar language which the the jury was told that it had to be unanimous in finding aggravating circumstances and it had to be unanimous  respect to the result of the concern and species act was the same concern as in this case that the jury though not so instructed would misunderstand the instructions but you know and have a devolved the exact same judge the exact very same sort of language that's been an issue in this circuit they quoted simply to explain this is correct us so your position if i understand it is that even though the jury is not toll that in so far as mitigating circumstances are concerned that any one juror can disagree and find the mitigating circumstances pottery is that your position yes because remember the mills versus maryland doesn't create an affirmative requirement that the jurors be told that mitigating circumstances need not be unanimous what mills says is they can't be told the opposite that is in mills the jury was specifically told you have to all agree on each mini gating circumstance before you can consider what we have here and what we had in spies akam what we have been a boon to maul is this is a case instructions that do not tell the jury that they have to be unanimous with mitigating circumstances the question is whether or not there was a likelihood of confusion on that point is there confusion whether when the the word get out of this in such close proximity to to the that the verdict slip which is also at issue in this case isn't really i don't see a real challenge in the verdicts looking at the word unanimity not even well that was my point i think as i understood the argument on the other side is that it reinforces your friend is it was actually clearer and one thing i believe that the opposing counsels made the point that the verdict slip one reason it was supposedly more confusing than the oral instructions is because it had a page of checkmarks where the jury was to check the presence of mitigating circumstances the same checklist was was president smith versus so i don't think that that goes anywhere there are some relatively thorny issues of the standard of review for you know to decide well and honor your i have no opinion on that i mean we decided first and let them have to follow a life it's i think it's not uncommon for there to be one issue no your honor because you know it was decided after the trial in this case so if if the court finds that ineffectiveness is fairly posed as we argue then the the actual and no i was talking about if we were to find the court did go so far as to decide this issue having also already thrown out the penalty phase on mitigation it would end up being dicked and this is with respect to the mills claim so it's the richard if that's  which my friends across the aisle rely put to one side for just for a moment that there's been no hearing which i think is a critical point just on the merits there is first of all there's not one contemporar and from experts who repeat the allegations of family members that's number one you had test you had a statement from your psychologist you had two psychologists who had a social worker on the other side did you come forward with an expert absolutely not because we said there should not be a hearing we said that we should win on the papers saying there wasn't a hearing and you're complaining well your honor it's like anyways yes your honor it's like any garden variety motion to dismiss or summary judgment if we say we're entitled to sue to win on the papers if that is rejected we haven't waived their right to a hearing and we haven't somehow waived the petitioners burden to prove his claims now you're correct fact that witnesses are nervous none of them were not prepared they weren't spoken to or there was nothing done that we've lost their whatever the knowledge was i'm not saying it's meritorious not but there is nothing done to explore what if anything was concerning his lifestyle prior as young man well if you can say well that's a separate issue whether or not that is is required that that specific discussion be held but if you're if your honour's are competent as a matter of fact on this record you can state as a matter of fact that counsel did not prepare these witnesses even though there hasn't been a hearing on that issue that's that that's where you would end up we still well hey we have one of them said he never even there are some some questions some answers and he blurted out that he's really innocent and that's the end of that nothing as to his background his lifestyle his abuse because the attorney clearly didn't know any to go for the for in other words meet the commonwealth the conviction can be affirmed without a hearing but that the writ cannot be granted without hearing that's that's our position in other words if you believe that the papers as of right now don't dispose of this claim well i was only talking about the record correct that's and that's what i'm talking about to you're saying the writ cannot be granted without a hearing that that or could you pass that the grandmother was lying when she said she was shocked when called the never prepped for a trial yes well i don't know if that's might be a difficult cross examination your honor and the well let's let's forget about facts right now the pca are a court made of some mistakes it didn't mention for example the deck or even mention the declarations of the lay witness or witnesses the p c r a court conduct to law it did not go into what his expert said the suffering from an extreme mental emotional disturbance severe psychological physical profound effect all of this had in his ability to understand is ability to withstand stress i mean do we have to we where is the hearing required in any of this they totally drop the court dropped the ball on th court didn't decide the right claim that's not the basis on which p b s can relief can be granted hideous relief can only be granted if the petitioner proves that there's been a constitutional violation and it's not the fact that the understand is that based on this record we have to have a hearing to determine the facts as to whether or not the record that we have before us is credible two sufficient to grant a petition that's correct well have before on this record which reflects that this is all what we've done is said that all the facts witnesses are biased and that it's not a summary judgment motion they lied when they said they were not prepare and he put no we're into this aspect of the case concentrating only on the guilt phase well a couple things first of all our focus  always been and i think we're we're missing a big point here our focus has always been on the prejudice that is that there is not one shred of contemporaneous evidence that these allegations of  abuse negligence are actually true it's all family members so there's two issues one did counsel conduct an investigation and number two if he had let's assume he had not and we say that he was on reason of all the number that does not that there is a new penalty phase because part of strickland is and it's not simply error and then harmless error there's no stricklin error if there is no prejudice if the trial was not fair the district court found that was powerful mitigating evidence powerful mitigating evidence and that it were reasonable likelihood of the standard is that if the jury heard it they would have found that the mitigating circumstances outweigh the that's a very strong state but we haven't seen the test administered we have i mean it's also includes are we have if you came back with nothing but we don't have to it's not our bur can say look at that motion to dismiss the allegations in that motion to dismiss don't meet the standard because they are on their face there are holes that's essentially what we can do in p c ira and what we did here and that's and we want to say court we lost before the district court but the idea that we have somehow waived our right to hearing or that the petition petitioners burden to prove under the constitution that his judgment is unconstitutional has somehow been relieved simply because he has filed affidavits from doctors that he has hired who can who have conclusions about tests that we have not seen based on data that we have not seen the idea that that is enough that that is i mean remember in this case this is a case where there was serious courage displayed by many witnesses this is a guy who who and i'm not talking outside the record this record is filled with a witness and we understand that they can but that's not our that's but i'm not saying this is going to be a near easy hearing i'm not say that we will necessarily win this hearing the fee petition i think if i could just one last point the fee petition is interesting because if you believe the fee petition he never even spoke to the witnesses that he actually called at the at the at the sentencing hearing in other words it's not meant to be a and it wasn't an exhaustive document you know documenting every conversation t did was was it correct well his statements to try on which he said i called the witness is that i wanted to call none of them none of them wanted to come that contradicts the i mean we didn't have to respond well not really he could have been that gap between four thirty in the afternoon remarks fourth and eleven o'clock in the morning when the verdict came in he could have contacted some people it could  but the federal court's job is not to to presume to give him the benefit of every doubt at this stage well i might say he's twenty we're talking about what happened twenty four years ago and lest you worry way to like get your have please the court matthew laurie on behalf of the heaviest petitioners of her throw lines with respect to the fish and performance side on on ineffective assistance the penalty phase as as the discussion is in the kid we have an affidavit from trial counsel who is now a sitting judge essentially i dropped the ball i didn't it i want to bring it up because i thought it was relevant but but more to the point even what he says in his affidavit about failure to prepare is fully borne out by the record from the trial  as i said are supported not just by the affidavit but by the trial record and by counsel's own time records and then if you look at the deficient perform or the prejudiced side of it you  know it i don't understand how you're going to really challenge the fact that that mr rollins mother abandoned him and a brother and left now now if they want to say that wasn't because of abuse but quick succession i don't i don't think that can really be contested and i don't think and the other thing is that the commonwealth hasn't really tried to contest the allegations which are not just allegations but they're backed up by these eight affidavits from family and friends and for affidavits from experts they haven't they didn't try to factually challenge the allegations and the affidavit with its side of the story we can you know we can certainly do that we can and we can be back up here in three or four years with the same record showing as judge joyner found the mr rollins  clearly entitled to relief on the penalty phase based on what is what is really a clear and contest the record of complete failure to investigate and prepare for hear what what are we what would you have us say what is our standard of review what are we looking at here or a review of judge joyner or yeah well i mean what do we do what do we prejudice the pennsylvania supreme court found no deficiency like that's correct and that's well that's what we were reviewing the district court's determination as to those who wreck yeah well actually and simmons  the third circuit said when you have this kind of situation where the where the appellate court the state appellate court does something different from what the state trial court did that you just need to look at the state appellate court but either way if you want to look at both of them neither of them addressed the life history mitigating evidence they both looked only at that mental health related evidence and judge say both looked only at the e three mitigating factor he didn't even consider whether the he reviewed what was done state court have a review it is our determination to our standard review is whether judge pointer appropriately gave sufficient deference to the state court or just apply review on the i a c penalty he did yes and and the facts that were the facts that were proffered in state court are exactly the same facts that were proffered in federal court there's not been have to be telling us well he was right for the reasons that i have been telling you that you have you have a clear case of deficient performance a complete failure to investigate and that's supported by by the affidavit of counsel by the time records and by the record itself which demonstrates that he hadn't prepared the witnesses and but my sense is we can't give relief without a hearing even though much what you say is not that we still have to give him a hearing well you know that that's their position and if you want to do that we will we will go and and we will  relied on affidavits from trial counsel and affidavits as to as to prejudice and and there's there's no difference really in this case  let me let me just say first of all that this court has noted problems with the instructions and verdict form this case in the past and the district court found found mills error as we should really though start of the mills claim wasn't an liza noble application of federal law i would agree with you but we have and that's coming back coming to us with ab verdict must be a sentence of if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance i mean it's the same thing with all respect it's not the same thing first of all what what your right that's not what it's saying it doesn't say then you must be turning a finding of death it says you must return that finding to the court the finding that the aggravating circumstance outweigh the mitigate yeah and that's the ultimate determination the ultimate determination is that the aggravating factors outweigh the good but what our instruction says is with all respect it's not first unspecific you have to understand that there is no requirement that the jury even find a mitigating factor in ohio that is the critical difference between this case and spitz act and you go right up above what you were just reading it talks about the mitigating factors present in this case the jurors can't can pull anything from anywhere and say that's a mitigating factor and they do not have to make a finding they do not have to check unless i've seen you raise that several times  your supplemental trial with five brief and i don't really understand you say that there is no requirement for the jurors to find mitigating circumstances before considering them in the weighing process and but but what is there to weigh if there hasn't been a finding if you as quick wires you find or you have to look for the mitigating factors present in the appeal that's their language have you not found them but but you don't have to you don't have to find them and there is not a list and speaks act contrary to what opposing counsel said they don't have to check off and say we found this one we found that one it's just if it's present in the case you can consider it whereas in in rawlins over and over again the sense the pens on your findings about unanimously and fines are coupled all the time and the instructions about what to do with the verdict form are are exactly identical for aggravating factors and mitigating factors the aggravating circumstance is or are and you would put them in on the verdict form whatever they are and there's a spot for you to put in whatever mitigating circumstances you find you you there is not a way  very important distinction i don't think that it is that because what the verdict sheet does say is we the jury do hereby further fine and then it lists acts and it lists minutes well what's we the jury it's the collective jury it's not there's not a way to take the foreman rowland's and say ok here is five of us we all like good character and so five of us check good character and the others don't go for good need not be found y an unreasonable application not to advise the jury in certain language that mitigating factors need not be found you know i am asleep now i may or may not agree with that because i was on the panel it's not at all because first here's here's the critical language from speace itself about ohio ok neither the instructions nor the form said anything about how or even whether the jury should make individual determination that particular that each particular mitigating circumstance existed now that is totally different from pennsylvania they have to find each minute before they can put it in the weighing process in pennsylvania that's not required in ohio and and secondly the other thing this be sex is about mills is red naturally under mil you have to look at read naturally is there a a requirement of unanimity and if you read the rollins jury instructions and the verdict form naturally there is no way for less than a unanimous jury to a find a mitigating factor and  but the reason that it's not unreasonable is there's a there's a couple reasons the big reason is that it never gets to the first step there has to be mills says there's got to be there's got to be a finding and it's got it's got to be reasonably likely that the jury understands it's got to be unanimous finding species act never gets to the first step there's never a requirement of a fine and i don't know at present species act once tells tells us mitigate find those mitigating circumstance that are present no no that isn't a finding i don't know what is it but but the those two things i mean the language of the instruction does not tell them that they have to find find a mitigator it just says mitigating factors that are present well but rebut that's not just about the average the result jury sitting in a box exactly look at that and and at this point because because they are not they are not even told whether they need to make individual determinations that each particular mitigating circumstance existed that's quoting from to be set and because they're not told that they different from the cases in which a new penalty phase was granted on this claim and especially those very few cases out and chandler where there was no hearing what is the district fart in order to grant a hearing what with respect to the deficiency of the procedure in the state but doesn't the court have to find there's been a change in the law is the state court decision which stands unless it's unreasonable so the first thing the court has to do before hearing it seems to me is say well the state court missed something or the sea court acted on reasonably in granting relief so we're not going to defer to the state court sort of it's as if the state court decision did not happen and then the court is left for the claim and in order to decide the claim the federal court has a hearing the legal court has a hearing if it's thinks it's necessary to have a hearing to my side the claim correctly one of them is maybe the court looks at all the records and thinks that maybe it's not necessary to have a hear decide this claim even though it's not concluded by the state court assumed from having the earing it could happen couldn't it correct it's like any other kind of hearing some you know it's it's all it's very weighted because we're talking of the death penalty we all want to be sure but the district courts decide every did every day whether or not now you took the position that this court should have a hearing because you just said that the proof was in their offer in effect was insufficient so that in effect they lose when the equivalent of a motion to dismiss i find if that was my how it came out i wasn't exactly my my my argument that the idea is that when what i raise a motion to dismiss for is that the our our argument that we should win on the papers doesn't result in our waiving a right to hearing the thing of the difference between this and a motion to dismiss or a motion for summary judgment is that there the allegations are not presumed true it's the opposite hey vs even if you throw out the the what the what the state court did even if you say that was an unreasonable decision really missed something or they should have had a hearing the presumption is not the bet it's true the presumption is the president the question is whether or not there's you know  possibility of cross examination or and there is if there is i mean if you asked the court for a hearing on this one i'm fairly certain that we said that you we should win so that you know all of these years of litigation have we heard that before where in the record is well i will look but i will tell you this that i even if i can't help but wonder whether now you're telling us where you need a hearing i can't help but wonder why you would not have said the state judge what they submitted all these affidavits and the they have meaning was that the attorney at the time and all that but we should have an opportunity to examine them about all this and please give us that now i don't see where in don't want to go keep going over this but but i must say i don't there's a space a point it's as if we were filing a summary judgment motion saying on the papers we win and the court said no that's false the other well i think now that that analogy is getting all straight i'm not trying following it any more but my point is there is a settled state court judgment we said on the papers we should win and by that we did there i don't frankly i don't even understand the argument that we have waived our right through to a hearing by which the facts necessary to overturn the state court judgment approved i don't even i'm having trouble i have trouble wrapping my mind around i i i understand generally the point of waiver i think this is one of those things that's not subject with this is this talks this is the whole it's not like it's inconsistent i'm not i didn't there were something like four hundred pages of briefs that we responding to in this case sometimes i wish i had said to put in a different sentence here or there are i don't think what we're saying now is that all inconsistent with what we said below i i i think you under your honour's understand my point about this i guess i think my personal discomfort is where this this issue has been litigated so far away so happily for so long and i can't remember seeing anything much about a hearing being requested or denied that it seems just a little late in the day to be saying ok now we've got to start all over that that's with the law you know justice and our whole point since nine hundred ninety six when these affidavits were first file is that they were not credible on their face they were not they were not enough to overturn the don't make the credibility argument i mean so so in a sense we were saying but now you're saying you can't rely on that make that same determination we have to have a hearing we have to let's correct because the judgment w weighs in in favor of of if there's not a sin if there's not a question and then the answer is not the both parties are are are now equal the presumption is on the side of the settled stake or judgment remains final unless and this is this is that the behavior statute unless there is proof it is proved that that not that it might be and not that it's waived but it is proved that the judgment is unconstitutional that's that's where we taking up so much time the reasons why this case is different number one no contemporaneous records corroborating the affidavits number two rollins testified at the sentencing phase and said i am innocent i didn't do it which is into lady eight yes button that the verdict was returned that is correct but it's our i know that after the trial that's correct we believe that a it was admissible based if if the other side had come forward with with expert testimony hearing if i were you well if we're doing it again well thank you ok that you well we now turn to  promise i won't interrupt too quickly again what relief are you seeking when the facts and the issue on actually on both the batson issue and on the in effect in this issue dealing with the guilt innocence phase on both those claims were asking for a reman for an evidentiary here let me ask you this about the bats issue twenty four and a half years ago this jury was selected yes where is judge sable where is the prosecutor where is me n how do you do an evidentiary hearing twenty four and a half years later and even if somehow you were to add a hearing establish a primer facially case and the record is very poor so far how in heaven's name can race neutral reasons be submitted twenty four and a half years later as to each of the jurors that was struck by the governor by the state well it may be difficult but it has been done before in cases like hard critically what does save us two or three times was well as long as you've got any african americans seated on the jury you don't have a bounce in violation no judge say bo in his opinion of fourth he said there was no pride of place in case he went into the prosecutor's demeanor he went into the prosecutor's reasons for for his fright because the people that he struck and he didn't identify as to whether people were african american or white he said because they were not inclined to impose the death penalty and he talks about the importance of the trial judge in seeing what's going on before him or her now judge sago you say is that right so we don't have the trial judge any longer can you reasonably believe even if the prosecutor is still with us and available that he should be expected to have an clue as to why i think the defense excuse sixteen jurors and prosecutor excuse only twenty seven or twenty eight people twenty four years later why each one or why his the prosecutor's strikes were exercised in a racially neutral fashion how can that be i wasn't even how can we even talk about hearing practically speaking we can we can talk about a hearing quite practically because you know to begin with we know that the prosecutor was keeping track of the of the race of people who were struck i and for the life a good fifty points and he was keeping records for a very good reason he knew he might have to explain himself that i think that's a debatable point your honor but what i was trying and response to just very what i was the reason that i referred to this is that that will be a contemporaneous record of who was struck and generally speaking the prosecutors write down reason was well so you can go back and look i don't really know and we only know it from the prosecutor we don't know it from anything that me and it is that the prosecutor struck six african american and five whites for a total of eleven strikes right and the final jury was comprised of seven whites and five african americans and one african american didn't show up and was replaced with a white alternate so there were four blacks and eight whites that ultimately hurt the case that's all we know as a matter of the race of the jurors and the number of strikes we don't know the important number and racial make up of the entire veneer so we can expect compute an exclusion rate that's all we know that's all we know and isn't right great the strike rate was fifty four point five percent the prosecutor strike rate blacks versus whites in a build your market was sixty six percent and we found that that was not enough for an eye on the face and that's all we have that's all we have and that's and but there is not enough there's not enough to preclude the possibility that mr rawlins can show he's entitled to relief and the way that that can be done is through discovery and a hearing and i do want to cover we going to show the discovery is going to show we're going to we we will then we can then determine  the race of the entire venire and we can we can determine the exclusion or you can do that just as a matter of interest because because because of the of the record keeping that the prosecutor did we will we will get that information we don't know the prosecutor has and information he has not so far disclosed since twelve and a half years later that's true and we've we've been asking for that information ever since we filed mr owens first petition and it hasn't ever been t well assuming for the purpose of record that it's possible to have this hearing twenty some odd years later why if it were possible to do it was a proc a matter where on this record have human title yourself to that type of forcing in effect the judge to make a a determination have to the prosecutor gives a race neutral reason where the defense attorney in this case really didn't push the envelope to that point not to the point that  ask for a ruling from you did they ask for an explanation from the prosecutor and a ruling from the court what did he say i've read it myself well he abusing and talking about the subject but that he really make paxson objection calling for a ruling a declaration by the prosecutor and a ruling by the court will he first of all i would point out that this was very shortly after bats and so people were a little unclear about aren't after it's required that the defense attorney call upon in effect a demand that that you know discrimination may be afoot here and require the prosecutor the come up with his reason for whatever the challenge was and which then triggers the assessment team that the trial judge rule on this show me where this objection was lodged with the court which force the will he make an objection to the seating of the juror he he objected saying that you know what we're getting now is this word i've read it myself let's get  nineteen and a ten twenty one with all respect he objected to the exclusion of one of the jurors he said this is becoming a systematic exclusion prosecutor said no no there's there's an african american already on there the prosecutor also said i'm keeping i'm keeping track of everything i will have a record for the court at the end of the proceedings they would never ask in the record yes there was he came in an eighty eight nineteen and he said at that point that he had promised to say something at that point there were four blacks and five white selected so it was your only midway through he put that on the record that was an eight nineteen then just before the jury is sworn i think it's just before the jury is sworn he comes in again this is an eight twenty one to twenty four and meehan says well you know we can take this up somewhere during the trial we don't have to do it now  not used they excuse the want to african american women who didn't show up and went on with the trial that's it i don't see in this record he ever asked for or really a ruling certainly not not  they had the jury in the mind what what have those two pieces of the record that i'm not not finding while i'm standing here there is a there is a charging conference at the end of the trial but we're there where there is some discussion of this and at that charging conferences when just say both well look there's blacks on the jury so there's no batson violation and that's and specifically mention and then in post verdict motion hearing again the same the same discussion that the the the state courts did not apply this particular version of a contemporaneous objection rule if if we're going we're we're extending a boojum all beyond them beyond what was in a boojum i mean there was first of all where there's no objection at all then there was louis where there is no objection by counsel here there's an objection by counsel  prosecutor says i'm going to make a record of everything so it's all there in a nice package for the judge to rule on and the judge does rule on a post trial that's well i think it's i think it's inappropriate to make up a federal contemporaneous objection role that goes back to there and says that was not that fail to preserve the claim i thought your brief was very interesting that that you know the prosecutor is doing all this he big track and everything but you know as defense attorney the last person in the world you should rely upon if you've got of the fence of some sort is the guy on the other side of the of the of the counsel play he can't say at this point well i did make an objection because i was relying on my adversary to prove my case that just is hilarious if you look at it so so i'll leave it with this your best argument is that there was some discussion about maybe there's some discrimination afoot and we'll talk about it later but as i understand back and it's that the theory of it is that it's for something think here you determine who should be s that judge say both made very clear during the trial that his view was if there's any blacks on the jury there's no batson violation and so there's no i think what he made very clear is the only thing that meehan was he really tried this case as if there was no defense to the charge of first degree murder just sort of cross examine people and see what happens but there was a huge piece of exculpatory information th counsel did not know until virtually the end of trial which is his client's blood type was there were type a blood group substances on a cap worn by the shooter at the homicide scene there was type a blood at the twenty first street seeing if counsel had known those basic fundamental facts about the evidence in the case reasonable counsel would not have try the case like a case where there is no defense reasonable counsel would have been out looking for more evidence to bolster the exculpatory blood type of atoms and the place the council could have gone the place  went was to go to a crime scene expert to look at some of the evidence at both scenes and see what that evidence would show and what it would have shown in this case as first of all as demonstrated by the neuropsychological testing mr rawlins is strongly right hand dominant now there was a a statement the statement by the witness via lettuce and thrown was that