recommendation concede that judge now your honour's as to the procedural the wind blowing occurred in this case we think of the district courts reversal of the magistrate on the question of prejudice without oh being a new the prosecution's expert testimony over what mr baer that's one of the credibility determinations was it was was the judges favoring one over the other based on the belief that the experts for the defendant were telling the were were liars while your honor the district court certainly battened that the prosecution's expert were more credible but judge shrader in making his determination stand where you know credibility was in there were in there were differing opinions of the fact witnesses in the magistrate judge was making actual credibility findings maybe not just finding that he preferred one opinion over the other with experts but i mean i don't know what you think that the the remain and for a hearing is is more appropriate i'm a case where you're dealing with act witnesses where we're observing the witness testimony on the stand might factual issue and i know they are so that i mean that could presumably cut against you too if we sent it back for her and said the district court should have had its own evidence rehearing if it wanted to let the magistrate or the district court did have all these experts take the stand again and then make determinations presumably seeing all the witnesses about the credibility of your witnesses and on that  drive which the evidence suggests that he had as it is clear that that evidence was virtually am reviewed by the government and again just schrader answered a very important question evidence from dr woods and doctor did these experts say how those conditions influence is criminal conduct happened on the night of the right to do it was your logical problems is well known paranoia that was acknowledged even by dr pryce and all of those things in combination this is somebody who  to all of that so another thing that needs to be brought up i think your honour's with respect to to the organic brain damage question is the district court's statement that mr  or drug users as doctor at said that's a form of self medication mr barrett was committed at one point for twenty eight day as a mentally ill person not as somebody who work and they couldn't even get a st degree murder conviction they got a manslaughter conviction mr barrett had no previous thought interventions the jury rejected that on caps wanted to they rejected that back and it was the united states yours the district court in this case appropriately and correctly determine the trial counsel's omission of mental health and certain family history evidence did not prejudice  in light of the facts developed during the trial and there are here three elemental facts that the council has touched on that i think bear underscoring  here the st is that this was unquestionably substantially planned and premeditated murder excessively so one might say the government presented six different witnesses to speak to this issue of premeditation and it was clear that mr barrett had been intending to confront the police violently should they enter his land not for hours or minutes but weeks and months he'd made repeated statements and in different contexts to different people he was clearly bent on doing exactly what he did should he have the opportunity and in fact just hours before hand commented to his cousin travis crawford after they saw the stage troopers go by that if they returned later all hell would break loose on your position that would be that  light of that planning and his intention to confront law enforcement for these weeks and months that any evidence of his distance this associative syndrome or mental issues wouldn't have had any effect on the jury well certainly not the mental health issues that were testified to by dr woods and dr maya were they indicated that mr barrett might have had some difficulty confronting issues under stress making decisions under stress switching between visual stimuli under stress the truth is that st mr barrett had decided well ahead of time  that he would do exactly what he did he even run through a dress rehearsal that a witness and randy turman testified to was some weeks before hand mr barrett was led to believe that the police were about to enter as planned and r barrett go and get his a r fifteen so this was clearly what he had in mind i mean it doesn't come couldn't the expert testimony though say that even in light of that evidence give the jury the ability to say you know he was he was talking about it he was planning it a rational person and without these mental health issues no would have still maintained the ability to back away from  but he being someone who can't process things on the block i was forced to stick with his plan couldn't decide that it was a bad idea and that he should just give up well i think there are two issues with that first neither expert was in a position to so testify dr my aura admitted during the evidence you're hearing that she was not in any way familiar with the facts of this crime and dr woods from the outset of his participation in this case has indicated both in his declarations and frankly in his testimony that he too had no real appreciation of what had occurred on k live whether he had or he had not the fact remains that he he he appears to have offered up his opinion based on something that simply didn't occur which is that mr barrett was reacting to some act of violence perpetrated on him by by the police and there are been you know subsequent attempts by mr recast this case as involving him acting in self defense one of the fascinating details that gets lost in in in the trial transcript i think and is responsive to this notion that this was some out of control cowboy a military style raid lieutenant geringer i believe testified that in the previous ten years that the that state trooper team had been serving local arrest warrant there had been not a single discharge of a weapon by the team hadn't happened so the idea that they had entered kenney barracks land guns a blazing is just utterly unsupported here and could not be the basis for a valid opinion by either of these mental health experts though that appears to e or was that based on testimony by just reputable people and their testimony might be discounted by jurors who heard the mental health experts and would have to side know he's not capable of doing what these witnesses said well all of those people were friends associates relations barrett i think each and every one of them had some arguable knock on their credibility most if not all had histories of drug use but i think there comes a point when a jury is confronted by six witnesses saying that they perceive more or less the same behavior and statements from one person that it cross corroborates and it's particularly cross corroborating when the defendant is keeping more or less add his side and they are fifteen with three magazines taped together in preparation for meeting the police so in essence the evidence of substantial planning in premeditation was overwhelming i i i i might agree if there were one or two witnesses that  the defense could have impeached but but not six not six with this level of preparation for this confrontation and i'd like to bring that back to the judge carson's question about whether or not the mental health professionals could have somehow meaningfully attacked this decision making by mr baer one of the issues and we don't go into this at some length and the brief with the mental health opinions was that they promised far too much and delivered far too mr barrett performance just on the night in question was far better than what was predicted by the mental health professionals he was capable of engaging a team of believe was a leaven police apparently to tame cover and concealment he was changing targets based on perceived threats st firing at the lead car then changing over to the st officer to leave the car than changing over to the nd officer to leave the car this is not a man who was demonstrating any major inability to to act under stress but beyond that when when discussing mr barrett more generally it's clear that the testimony of these experts was not reliable it did not describe the person that even mr barrett would would have to admit he was say for instance going to pick up women st were the experts question about his conduct their its conduct at the time of the killing and asked whether that was consistent with their view of his mental condition well if recollection serves dr my aura simply stated that she wasn't familiar with the facts of the crime so examination by the government where you said you know the questioning could be you said he was incapable of proper executive function in a moment of stress in your assessment what the experts say is inconsistent with his behavior even on the night of the killing the opinions about his his ability his performance were inconsistent with his behavior generally and on the night of the crime thanks please continue and and i think one particularly apt example of that and this is something that mr audley touched on is a comment that the district court made in passing with respect to mr barrett's apparent competence to stand trial i dr woods insisted from the time he became volved with this case barrett was among the most helpful criminal defendants with whom he had ever work you know and similarly outside the scope of the crime itself dr my aura testified about mr baer hurts deficit's and planning abstract reasoning and attention but these would have been inconsistent with the testimony that was offered at at at the penalty phase as it was he had witnesses who came to talk about his ability to work as an auto mechanic one of them talked about him overhauling engines it's hard to square someone who is capable of everything that put you know connected the dots and said because of all of these mental deficiencies he couldn't have known what he was doing that ny or you know he was unable to deal with the situation like a rational person would have i do not believe that there was any mental health professional certainly for the defense that they offered an opinion about the actual facts of the crime i think the closest we came was we had diagnoses from the government experts of personality disorders poly substance abuse  these were things that were plainly impacting mr barrett's performance and his behavior that night but there there was no  disorder no mental illness that was ever connected to his conduct or his decision making as it was proven to the jury at the time of trial counsel that anyone what's the all e u l e expert who did that my understanding is that dr wood's performed a psychiatric evaluation i believe it was dr young who had performed on behalf of the defense a neuro psychiatric battery on the government side dr pryce  performed a neuropsychological work it was a less complete set of testing with regard to the question of brain damage because demonstrate a deficit that require any further inquiry in his opinion again that was substantially closer in time to the crime in any evaluation that was done by the defense in anticipation of this litigation and then separately the government retained dr pitt who performed his own separate psychiatric evaluation but i don't believe that there was any single professional who was in any position to perform both kinds of testing and i might know in that regard i counsel made a statement about d what do you think about the evidence at the hearing about the abusive back around in the dysfunctional background and the way the district court disposed about well with regard to the question of how the court disposed of it government stands by its position that that procedural issue is not squarely before the core but that sa we believe and this is based on the district court's own statement in the opinion that it reconsidered all of the mitigating and aggravating evidence and the result lack of prejudice but the court did in fact as it said it did consider the family history evidence and i'd like to touch on a point that was made during the appellant's argument there was evidence enough that mr barrett's upbringing was probably less than ideal as things stood at the end of the penalty phase it's clear that his parents are divorced and that he had moved frequently that after the divorce he had had in frequent contact with his father but there were more clear indications that things were less than ideal his mother's testimony about his departure from high school was especially and sews and i thought given that he left at sixteen apparently over an argument with some over a haircut and left in the th grade clearly for most jurors i i think that would have been some indication that his family life was in some meaningful way a mess right dr drew but let's go to the evidence or hearing i mean at the evidence you're hearing he produced more extensive evidence of this dysfunctional family background and  his abusive family background the jurors have heard there is more extensive evidence but i think there's it is a mistake to conclude that this evidence is purely added that it is in fact not surely additive would have altered the overall calculus of this case and one of the things that it is a distinct importance in this case were trial counsel's evident and frankly course of the trial itself were their efforts time and again to try and minimize mr barrett in a dangerousness so with that as extent that that there was certainly testimony about that during the original trial the family witnesses for the most are denied any real knowledge of what mr baer is drug use was  of real and substantial violence not only between mr barrett and his brother but between mr barrett and his mother and this is significant in light of  repeated denials during the course of her testimony at trial that two of them had engaged in physical violence and when one begins to add that evident contradiction with steven barrett's testimony that mr barrett had one son to the hospital for stitches another time left him with a need not with a needle rather with the scar that was with him for the course of his life it becomes a lot works i'm curious i mean i would think it would work very much but can you do you have a different experience from defense counsel on the success of the good guy  gation arguments i can't speak in general terms or certainly in statistical terms to what will will not work i think that the defen correctly perceived in this case that future dangerousness was a substantial and dangerous allegation for them clearly given this evidence that they were going to escape two of the statutory aggravators those being substantial player premeditation and then either grave risk to others or or multiple murders and those those things were clearly going to be proven but to to blunt future dangerousness was i can see this being an appropriate  calculus that here is here's a place where we can win the day mother testified contrary to the new evidence of the of which is that risk certainly no effort to gild the lily with with regard to the circumstances of the crime but as i've indicated some of the evidence that come out during the course of the hearing actually does tend to underscore the government's position with regard to future dangerousness and i had before i lose the opportunity here is my time is winding down i would note that mental health evidence putting aside the government maybe just buttes with the reliability of that that evidence had and mr barrett put in into issue his mental health there's seems unquestioned that it would have resulted in  the introduction of the evidence of mental health treatment he had received in the past when in fact mr ochs retouches on one of those occasions mr barrett's time at eastern state hospital i do want to correct the impression that mr barrett spent twenty eight dollars days at eastern state hospital mr baer received they commit in four up to twenty eight dollars days at eastern state hospital but mr barrett was treated at eastern state hospital for eight days and what's more the records regarding his treatment at eastern state hospital make clear that he was diagnosed on exit with mixed substance abuse dr wood repeated statements that the historical evidence in some way indicated that the time in eastern state supported his diagnosis of bipolar disorder it did not the psychiatrist you saw on there did not think that he had bipolar disorder and more as the point on admission the records of mr barrett's time at eastern state hospital indicate that he was there because his wife brought him to the emergency room complaining about is threats to her and his acts of violence toward her and his sexual assault of her and his kidnapping of one delved into it was going to completely undercut the defense's efforts to try and cast mr barrett as somebody nine figure who made a mistake in the middle of the night when we saw the police  hurt and take this opportunity to point out that what mr autrey casts as a decision about credibility is not there there was not a decision made by the district court here that require the the district court judge to revisit this evidence with with the witnesses live he made absolutely no indication that is the district court judge me no indication at all that he disbelieved these people i certainly thought that they were sincere in their findings they were just again incorrect and because they were incorrect they were not persuasive based on the evidence before this court there is no reasonable likelihood that even one juror would have voted for a verdict less than death in this case evidence that defendant now wants to pursue wants to put on would have been inconsistent with the strategy regarding future dangerous that to me suggested there's an argument that it was not ineffective assistance to not put on that evidence i assume that the reason you're having to refer to that in terms of prejudice rather than ineffective assistance is because defense counsel didn't pursue this evidence for trial or at trial and we do not say that counsel was his effective when counsel didn't do the didn't do his homework didn't look into things would you respond to this was was there was there an informed decision with regard to mental health or family background based on the strategy of presenting him as someone who didn't create a future risk of danger certainly with regard to the diagnoses that were offered the government has no argument that neither mr hilfiger well as the district court found the decision not to pursue mental health evidence was apparently made before they consulted with doctor  sorry jeannie russell regarding her findings and she had actually previously evaluated mr barrett and found that he did not suffer from any major mental illness but given the district court concluded that they had previously made the decision as you say it's it's an impossible position what about the bambi but about on the family background was there an informed decision made there i think that's less clear your honor there there's no doubt that there were a lot of investigative  records vailable d to counsel counsel had some interaction with the family the family disputes now the extent of that interaction and of course they had access to the defendant i think the overall arc of the evidentiary hearing was that it's really hard to remember that from all that time ago so it's hard to say definitively how much of this they knew  and shot through all of that is clear indication that mr barrett was guarded in the extent to which you want to bring his family into this dispute to the extent mr smith or mr hilfiger testify about their strategy in pursuing the he's not a future danger to events or mitigation i don't believe past mental health records indicated that yes while he did have a drug problem and he has triggered peripheral problem he had underlying medical conditions that lead one to want to prescribe  that in his testimony mr barrett's mother did not testify at trial contrary to what she said later on and her declaration she was never asked and it was never investigated whether she and her eyes answer is no doctor was the st not suitable for a comprehensive psychiatric evaluation of mr barrett and he did that in conjunction with it and working with dr yeah who did the a neuro psychological evaluation back in two thousand and nine with respect to this deal about how mr barrett being a good mechanic obviates all this is dr ruse point is that his ability to work on cars is governed by