brady crime and secondly whether trial counsel was ineffective during the penalty phase of the trial for failing to or an adequately investigating preparing and presenting a claim of  township police department to the federal bureau of investigation for assistance in investigating the case and then a subsequent report from the f b i now it's important for this panel to remember that this was a very cold case the murders in this case took place in one thousand nine hundred and seventy and the case went unsolved with but with a lot of investigation for a decade information that had been built up by law enforcement during that long period of investigation much of it was not presented to trial counsel prior to  e if you'll excuse me i've misplaced notes prior to the trial st of all one of the categories is the identification of other suspects including one suspect who confessed to the murders one suspect who confessed to breaking into the lehman residence one who sustained injuries at the time of the murder consistent with a struggle with someone with a knife and a juvenile court finding of probable cause to believe that five human errors may have been involved with the murders and with regards to these particular confessions part of the warn speculate as to the admissibility of evidence at trial instead of prosecutors duty under brady is in my opinion analogous to a civil counsel's responsibility under the rules of discovery you don't talk about admissibility you turn over what you have and the issue of admissibility is left up to the court later and if it's something that you have that is material and favorable to the defense you turn that over and if you've got something to argue about it because defense wants to use it at trial that you as the prosecutor worried about that later your st duty up front under brady is lo evidence that is material unfavorable to the defendant you turn that over now mr court waves this off by talking about the fact that mr eubanks confessed i would point out as we do in our brief that so defendants in other cases that this court has recognized and and granted the kind of relief we're seeking and that's a particularly gumperz is neutral throwing up on mr eubanks christo in the state there was no physical evidence there were no eyewitness testimony and again as i point out this was a ten year old case and then  the custodial statement itself contained a number of inconsistency some of which were not revealed until the federal havey is discovered and also a number of instances where details of the offense were provided by the examiner detectives rather than volunteered by mr eubanks himself so if there is a question about the other confessions it also calls that that this is a reliable confession by him and if that is the law what is the corroborating info re hayes being the perpetrator prosecutor so that that kind of investigation could have occurred but because it wasn't then we're speculating now by having to do that kind of work ten years after the fact to find out if indeed we can corroborate mr hayes a statement by filing so in other words there is no corroborating evidence at this point  only crime aeration is what is contained in in the record of who said what so is the is the record this report from the polygraph unit is that what we're talking about yes your honor and reports at that time that gave those theories as well that it was a staged burglary and that somebody was angry but the victims were there newspaper reports that indicated  honor there were a number of newspaper reports and several of those were presented at the original petition post conviction petition but in this we rely entirely upon  talk about the favorable results of the testing of the trace evidence that also comes about because of the federal discovery   they were not comparable to anybody but what was not told to defense counsel was that mr hugh banks specifically his prints were tested against the trace evidence and he was eliminated as a suspect so that the trace evidence was sufficient and suitable enough for use eliminating suspects and in fact that's exactly what the state did over two hundred suspects including mr hume xx so it's kind of disingenuous then for detective kemper to take the witness stand trial and say  well you know we didn't find trace evidence that would help identify the assailant but what it doesn't say is we did try something to eliminate suspects i understanding is that the bloody palm print that was found on the window sill was used to match against other suspects including mr eubanks prints  it could have been left by someone who also confessed to the crime other than a few basics but what we don't know is what we do know is that what was found the trace evidence that was found didn't match m well your honor i agree but i believe that's a false positive and we have to look at both sides of what is shared with and what the prosecutors duty under brady versus maryland is and  for goodness sakes this is a capital case share everything that you have with the defense and let that either  let the trial judge be the gate keeper of what comes in and what does not come in in front of the jury but at least give the defense an opportunity to see what you have instead of this misleading statement that well we didn't have anything that was suitable enough to make a comparison and what we did have didn't match your client mr humidex that's that's far different than saying that we didn't make a match it was suitable for comparison we were able to do a comparison and he and other suspects were eliminated i think that's a very important fact that the jury should have been made aware of or at least got the favorable eyewitness statements from people in the neighborhood who saw other it was this was not shared with the defense council numerous reports suspicious individuals a black man covered with blood exiting the woods behind a victim's house while carrying a knife or a machete a white man six foot six of six foot seven walking between the women's residence and the next door neighbor  it all but what the fence is a title too is all that is favorable and material to note or sentencing in a capital case and this is a death penalty case if anything a prosecutor when in doubt should err on the side of producing too much not too little if the prosecutors providing extremely useful material so what and less it  applies to the application by the springfield police department for the the f b i for their assistance and also the impeachment evidence that we talked about witness and that this witness as you point out judge givens if this witness is look was the jury taken or wasn't it is it missing is it not then it's either corroborating or it's not corroborating the statement but as it is a defense counsel could not make that strategic decision when that given the information that there was no jury taken and so it it appears that defense is left with is the fact that oh well there must have been security because the defendant confessed and here's the son talking about his mother's during well then why don't you tell us that there was no jury taken so that we can use that in a proper cross or this particular claim of ours is based upon the fact that a capital defense attorney has a duty to investigate the circumstances of his client's case and to explore all all avenues relevant to the merits of the case and the penalty all and not just some as is just some summarized testimony in the rishon johnson case the question as to whether or not they were even red state post conviction counsel a sum of twenty eight sets of records concerning eubanks there was a failure to adequately or even interview you interviewed them because they actually turned in your client they both replanted those statements your honor and that would have been the perfect time to ask them about that  and yes you're right that's that's how the trail originally led law enforcement to mr eubanks after a ten year old cold case but but the point is that death penalty counsel cannot make a strategic decision without st being placed in a position to make a strategic decision you don't know what you don't know baseball coach that always used to information about the it is not restricted your honor to just those two that they had an opportunity to talk to but also to the ones that actually did  testify as well but it's the experts and they use the experts that's most egregious and pointed out primarily by the prosecutors closing argument to the jury during penalty now tries to convince this court of is that well at least they did something well again that's that's damning with faint praise that the least you can something it's the very thing that we criticize you for a trial both his brady claim in his ineffective assistance of counsel during the mitigation phase clean this case is not one of st impression this conviction and all our court decisions have up held since the day of trial including a unit print ohio supreme court in a district court consideration that dated any appeal would be objectively frivolous the word maintains specifically that the brain the the position that the brady claims are m s as my colleague talked about the six different categories of evidence that were brought forth in his brief are  minimally what the warden would posit that they are minimally provocative as categories individually and then cumulatively as well the petitioner here has not shown that it is more likely than not he would have received a different verdict with this evidence either singularly or cumulatively any again overstates in program the nature of these categories of information specifically as to the other suspects at the time of trial of course ten years following the murder there had been other suspects considered by the police at this time well why shouldn't the police have had to disclose  other suspects and what was what was being and investigated by the police at the time while it is true that it wasn't turned over none of these suspects were ever definitively linked to the homicide by either admission fingerprints present friends that evidence or eye witnesses in a significant manner so they weren't with jim it suspects according to the police in this legitimately think he was a suspect in this case so was there ever was there ever any follow up with respect to mr high so i believe there was as to the specifics of it and i'm unsure  but i do know that the police have stated in their reports that there was no corroboration to include the trace evidence there were no fingerprints or palm prints that could be traced to any of these suspects including mr cubing which was turned over to nine and what what that statement says in it is is in addition to numerous in addition excuse me numerous live lists were taken from the residence only a few will were suitable matched to the defendant or anyone else so in the initial discovery in this case mr feelings knows new from that that he was not briefed to the so i don't i don't think that characterization i don't think that characterization is correct being eliminated as a segue that wouldn't be more would it be more accurate guided his fingerprints were not met that were found at the same  i would agree with that yes your honor the the warden position would be that he knew that he was not linked by the trace evidence to include the palm print the body prone palm print however he was not eliminated as as he came forward later and confessed to the crime and was then investigated as well disorder he had also diagnosed him with the schizo affective disorder and the treatment of him of mr hit by dr de silva was intensive in nature so he knew these things going into the testimony  examination another export would have been cumulative to say the same thing that dr de silva did however on cross examination the double edged sword comes out did mr hugh they have these issues yes he did was he still capable of complete committing this crime the potential into their speculatively of course yes he was capable of doing that but our position is that more experts to say the same thing would have been have testified to that effect he had treated his mother loretta and his father gary sr and knew of the family interaction from that treatment so as to why it didn't come forward or how  sickly necessary it was not clear from the record the warrant position is that that would have again been cumulative we we knew from the testimony that he was bipolar that he did suffer from substance abuse eubanks was being sexually assaulted again i think it was when he was fifteen correct me if i'm wrong that those would be very significant things that the jury would want to hear in mitigation why isn't that the case to his potential to tell his attorney about it to ask about that stuff so it is what the warden position is that it's still a reasonable trial that mitigating factor why would that not be something any reasonable lawyer would do your honor it may be that they thought it was seamless of a nature to the by a bipolar and not as a source of the bipolar in springfield township to come down and investigate this crime what happened is that they one of the detectives and a lieutenant were at a training where the f b i was there presenting and they brought their information and the f b i agents that were there over viewed or reviewed the information that was brought to them they did not go to the crime scene and investigate the crime scene or the homicide they reviewed the information that was brought to them by the detective and they wrote this report or profiler summary in this summary there's no new information that was considered it's all information that was given to the there was it was given to the defense counsel it in the form of pictures and information from the crime scene there also no witnesses that were interviewed by by the it was i think the the training was a four day training so i don't know if it was over the course of four days that they're viewed it or just during a portion of it well i i hear you telling me how the f b i got the information that it utilized to make a profile but the profile suggests that the perpetrator of the crime a was not there to do a robbery and b was based on the nature of the stabbing wounds was somebody who was likely to have known the deceives and been very angry at them so why isn't that brady material your honor the word position is well well this in hindsight well looking back at this this maybe could have been considered favorable to the defendant at the time of trial it is not material to it because of the confession so you keep relying on the confession and when you look at the confession there are real issues with the way that the  police were leading mr eubanks and mr eubanks was being provided details by the police whenever he said things that didn't seem to match what they wanted him to say so if you keep going back to the confession and and is that the really the only thing that you have to rely on well you know your honor well the word position is that the confession is integral in this conviction as as a piece of the evidence the family members that the lehman's had that were close to him the three sons also had a very solid alibi for their time at or near the time of the crime so if you're considering what the f b i report says is a you know close family nature and you investigate these three sunbird when and the rd son i can't remember his name right now they all had solid alibi they were either far away at the time or driving to somewhere at the time so those close family members were considered as suspects and discounted because of their solid alibi so the f b i report shows that you know the profile of this suspect potentially could be a close family member because of the graphic nature of the stab wound in not wanting to leave a witness behind so that may be favorable or have been favorable but it is not material because you can eliminate these other suspects as to the time an alibi for them and what i want to switch gears just a moment here i want to make sure that mound or standing is the the lack of your honor i said i don't believe that the trace evidence was giving but given to the defendant but the lack of a tie to the defendant or anyone else was given everything else were given i don't mean that the  the photos of the fingerprints or whatever but but the defendant knew the results of the examination of whatever print in was found at the sydney as well as any examination and i gather that the sort of the overarching theory about why it was not turned over is that the investigation of other people was not really germane to the case against mr here because the other investigations just sort of ran into did eons is that right and in some cases like for example eyewitness statements i mean the state presumably concluded there were no eyewitness statements and that the statements that provided some evidence were ultimately discounted as not were waiting it the detectives investigating this crime have run into debt and on multiple occasions that it has been reported on pretty i mean it is this was a low crime area so it was reported on accurate i think that's fairly accurate yes your honor and the five cap the report the profile that the f b i i'm not sure how that gets to be evidence in a case that's the word you can see that it could have led to admissible evidence however in this case again the the personal nature of the crime that the f b i focuses on would have led to the alibis of these three to his case when the word position is that it couldn't have been well what about these eyewitness statements so the eyewitnesses presumably are making statements as that are roughly contemporaneous with the events of the murders and they are saying different things like one of them somebody who was of one race another one saw somebody of another race and so forth why aren't those statements would be helpful to the defense to know that there were people around at the time that identify other people who were you think confession there are of course as my colleague pointed out there inconsistency is in his confession but there are also a lot of consistencies to include the bloodhound that trace the towel matches the description of what he being said he did after the crime so that the house was the backyard of the house led to a creek or river and he went up the river to an elementary school and that is exact route that that bloodhound trace there are inconsistency which is consistent with human nature to minimize what you may or may not have done in a confession and then he moves on to confessing in more accurate detail as to he did it alone and these are the details of the crime and again this is the confession is ten years after the  crime he is also confessing to different detectives in arizona that are not investigating detective so it's not the detectives from springfield township that go out to arizona to question them it the arizona look local detectives that are questioning him in order to report back to the thing failed township detectives what is the and he hasn't he hasn't claimed actual innocence in this case he also again with the trial strategy of of the trial he did not claim that he was innocent in the trial closely at the record to tell you the correct answer for the two are you confident of your answers with respect to the trial so what so your answer is underlying crime so the same murder is there two defendants two different cases but the murder is the same young man so the difference between those two cases in this case is that there was one ballot alternate suspect in that case there was one suspect that confessed to multiple people and multiple people brought that forth to the police and he was investigated as a viable alternate suspect in addition  case is significantly different to this case so that case is investigated for both sides and you know they're arrested and tried within you know here they're i think arrested within three months of the murder versus the ten years that this case has to do with additionally there's significant mental impairment in those cases so both defendants were found to be says trial counsel didn't call his brother his uncle or his dad those are the people that had come forward to the police and and stated that he had confessed to these murders to them and i know that he did  h his brother and his father recanted afterwards there's no indication that they did that before the mitigation phase of this trial even if they did the cross examination would have included this information  which is again a double edged sword so you know my brother confessed to me and then i recanted it but i'm the one that brought him forward to the police but why did i do that and  claims is that under the strickland standard there there meritless as to the witnesses the investigation and what was presented at the mitigation phase of the trial  ending any questions are all go ahead and finish up so again the warden would like to remind the court that this is not an actual innocence claim the district court found that both these claims the brady and the ineffective assistance of counsel were were not up to the standard of both brady or strickland and with that we would ask the court to find that same thing in the in this case  all the decision of the district court thank you thank you strategic choices resulting from a lack of diligent preparation and investigation do not enjoy the presumption in favor of counsel that's a quote from wiggins versus smith united states supreme court case once again you cannot make strategic choices if you have not put yourself in a position to make such choices you have to present the jury with what you have a medication and i think one of the questions to warden's counsel had to do with exactly what was mitigation theory what was the strategy in this case and it would certainly seem to appear that the strategy was instead of to come to present to the jury a complete picture of the defendant's background and his mental social medical background instead what's presented is a box of picture puzzle pieces in hopes the jury won't correctly put them all together and make their own complete picture no that's the duty of counsel to do that yes the fact that the defendant had been molested repeatedly as a seven year old and then later raped at the age of fifteen would be critical those would be things you would develop with your experts that are called testify and once again we're back to this dichotomy between what the prosecutor argued because in argument and now what they're saying in defense of counsel at trial what is the typical a did they  prosecutor argue at closing that you're emphasizing during closing the prosecutor argued that dr raj you had not seen the banks in twelve years that roger you had not tested you bags that he did not have an opinion as to you banks's mental state at the time of the offenses also argued that dr desilva did not know the facts of the case which was true the silver did not have an opinion it's up to defense counsel to find that out beforehand you have to go to see your expert and say can i see your file so i can review it read it and get you ready and prepped and by the way did you know that this guy had been raped and molested repeatedly as a child so that just these guys coming in and saying oh yeah he's got bipolar that's grossly inefficient of an overall strategic plan of a minute issue theory to put forward by the defense so where these various pieces fit together instead it was a scatter  shot piecemeal approach and then when we get back to the family members as well the mother who did testify in council doesn't even talk to her until the sunday before she testifies so there's a lack of memory a lack to failure to investigate but a failure to prepare failure to get your witnesses ready and the bottom line remains the same did your receive of failure truck in this case the penalty phase the death penalty phase of this particular trial did result in a penalty and a recommendation from this jury that we now after the fact to look back and say yeah we've got confidence in that i would stress to this court i don't believe so and i hope that you agreed with with us as well and i thank the court for its time and it you any further questions we thank you both for your argument and against will be submitted