counsel and whether or not the failure to provide counsel at the pre sentence interview was harmless that evidentiary hearing took place over a period of five days as well as a number of depositions taken in move of live testimony and judge the district court entered an opinion finding that mr hoffman had in fact been deprived of his right to effective assistance of counsel at the sentencing stage as a result of trial counsel still you to develop the mental health issues failure to interview witnesses including two people three people named one was mr adams mother but the other two were debbie holmes who was the wife of richard holmes who is one of the major co defendants still killed in prison in this case and of don williams who was the girlfriend of mr hoffman at the time think not your honor because the way the statue the set up there has to be a jury finding of those aggravating factors before there's a default sentencing i see so we would still have to have a jury finding aggravating factors even to get life without parole right to issues that are raised here are for one is the failure of the defense counsel to develop and prepare and present a cogent theory of the stance regarding the ability of mr hoffman to single failure of the trial counsel to develop a mental health issues his failure to secure mental health experts and develop those issues and give rise to all four of the lawyers believe that he did and there was a conversation to that effect one of the difficulties in mr hoskins mental health issues is that he suffers from psychosis due to an injury or malformation of the brain and also due to long term substance abuse as a result of that his reality is different than others and as trial counsel testified at the evidence rehearing they realized very early that he didn't actually understand the proceedings that he really couldn't wrap his brain around what they were trying to say and that the details that they didn't ever ask him specifically what the details of the office were but in fact they gave him the details and then he went they would you know ask him to sort of feeling blank and that well before trial maybe at least three weeks three four weeks i think it's like three to one week one to three weeks before trial mr cult is that he became clearly aware because he would begin to test mr assume that it is ineffective assistance of counsel not to a perform mental and psychological testing on mr hoffman and if they had done that testing they would have got the same result that we now see in the testimony in front of the district that is to say low i q hovering somewhere in the low seventy's almost organic inability to read if that's the right way to say and psychosis some of it coming out of drug removes or other i'll just take all understand that but let me try the case for me i mean i read i read the transcript so i mean i know what testimony was put on and all the evidence that was in there against him which is a fair amount so how do you deal with that you  presented at deborah of don williams of ron wages as to the extent of the drug abuse and to the actual ingestion and injection of methamphetamine cocaine at the time of the authors so that even assuming that wrong wa tell the truth or was telling the truth because he now has recanted was telling the truth at the time then present to the jury the fact that mr hoffman's ability to form the intent is simply not there now it was a decision a strategic decision they said we didn't do it because we didn't have time because we were overwhelmed because we were we were doing something else and what they were doing was never cut was going to trial without a d evidence against him primarily from wages now homes talks about what led up to it but what the evidence is what actually happened up there in the ravine is really where just testimony only way distance was not quite only to just testimony we have the later testimony from williams and from honey cut and from gezi in terms of what holmes terms of what hoffman told him while in prison but primarily based upon on wages we have that testimony and what do you do you say well yes he did slit her throat but he didn't know what he was doing in truth that that's what you have to do you have to present dr americans you have to present your public steward and you have to present dr no riley and you have to reach out to the jury and educate them psychosis and there is a better chance of succeeding there the strategy actually adopted which is to say he didn't do it there is to say the strategy actually adopted was to say wages did all of the cutting  and the evidence they have for that is partly sort of omission is to say well you know all we have is wages testimony and then these irresponsible and reliable jailhouse snitches plus we've got the two people forget her name now but choosing one or the other you know we did it or it didn't are you i don't think that i have to choose that because i'm on the basis of his mental health he could have done it and he wouldn't have had the intent he may not have done it and he wouldn't have max hoffman that that was the only plan assuming he found himself because his because in a place he didn't want to be which is what he said it makes sense for him to try to get out of it by pretending to go along with those who are stronger meaner and have power over him and yet not actually engage in the act of killing it is it would make sense if you were the testimony regarding that's hoffman not only of the experts regarding the the psychosis and his inability his lack of reading rooted to reality it was like now ryan leaf and saw him go into a psychotic episode it was like no right he said you can talk to him talk to him talk to him and what he says understand what the expert testimony is but it's hard for me to accept or to believes that a jury in any county anywhere would believe that someone who's well enough but the judge permits them to be in court for a trial could be so psychotic they could actually believe they're helping someone by cutting their throat i actually i believe that a case could have been made and i understand your hesitation to i diot that because of the the bizarre nature of it but the testimony regarding the bizarre nature of mr hoffman thinking is undisputed he does not think the way you and i think he may speak words that are close to the words that we speak though not  with mr hoffman believed that mr hoffman was competent to dismiss his appeals that upon a second there's it with mr hoffman where mr hofmann literally appealed the granting of his own motion  judge realized that even though he appears to be partaking in a conversation he doesn't understand what he's saying here's a thought process is in a whole different dimension than yours than mine than the juries and i think with the fact situate the fact witnesses are gone williams and debbie holmes about his mental retardation and the limits that that create and then you add to that the psychosis and his inability to absolutely thinks things out the way we think things out there was compelling fact testimony beyond the experts that would lead you to believe that only that max hoffman the theory that hofmann saw he was protecting her by cutting her throat in the case how can you do that with that level of detail and still keep  other alternative defense he didn't do it might have some point if you're down level to detail i think you have to abandon the he didn't do it version of it is that right well i mean he didn't do it or i'm going on very well very elaborate story with the word sort of loyalty and his willingness to be scapegoated by these much smarter much meaner people trust so i think that you're right the level of detail how he attaches theory you know to the sense that i wasn't trying to kill her but that could also be he's accepted the burden that mr holmes and mr wages have placed on him with a part to a murder that he did not commit that he did not even participate so you're still saying that that it would have been a rational defense strategy to say i didn't do it we'll just did everything but if i did it i was down there in a cave trying to protect her and i cut a throat and then told her to stay there and you know  perfectly and i agree with you but i'm after ok once you know then what do you do and if you go with the second one that is to say he was in the cave he cut her only to protect her i'm assuming that the kidnapping outbreak you simon is comes in is that hofmann participated in that kidnapping as well and was there evidence that during that kidnapping that he held some almost some of the others could hear him is that true my my recollection of debbie holmes testimony was that she was present at the time and that that you limit placed on the amount of the defense counsel compensation yes but i'm not sure that it's part of the record but there there was a as i understand it the agreement compensation was that mr wellman had a public defender contract which was limits which he and he didn't get additional it was a it was a low bid contract and he didn't get additional compensation i'm not sure what mr colter got that he was not appointed until there's so much money a year that's correct that's correct and at that time in idaho there was not any extension for capital cases there is now an exception for capital cases so there is some state funding for the  your honor that's not a decision that i get to make or my office gets to make and i hope the local prosecutor makes that decision and ultimately that's going to be made by them we have made recommendations to the local prosecutor and in fact our office during the course of hopkins trial helped them but that prosecutor from our office is no longer there and quite honestly candidly i'm not sure what our office isn't offices involvement is going to be in the recent now no we do not you know that but just to make sure that i pin down your answer to judge persons question you're not able to give us much of an idea as to what would likely happen if we leave the conviction intact and allow hoops that we have to jump through in idaho to do that and number one would be the actons issue and whether that's why i don't know that it is your honor based upon the evidence that was presented to the pleading spiled indicating the mental retardation before the trial court and there will be a hearing held before the trial court and if there's a determination that there's mental retardation then we can't ask for the death penalty the most that we can expect if if we can't ask for the death penalty will be six life however we we can't and that the jury does not have to determine the mitigation outweighs the aggravation it's fixed life that's not going to be in this case and mr hofman situation because the jury determination of an aggravator for an automatic fix life was passed after mr hawkins conviction it hearing which is at least in some part why we decided to withdraw our guard lakeville to make it work something like this i think it's possible your honor i just don't know that that will be done again i'm you what i did was contact the local prosecutor and i asked the local prosecutor are you interested in this and he has responded yes a letter went out from counsel yesterday in that particular case that's that's a different case longstreet yes who seem to have been young but in full possession of all of their faculties they delivered a nice knowing darn well what's about to happen to her yes you've got homes who seems to be the ringleader who  arranging for this and maybe even paying for the house yes we've got wages who is in full possession of his faculties or at least maybe i should say that we've got serious drug addictions by both wages and home but he's he seems to be competent so many more competent than mr hartman he seems to me the moving forces out there when the niece is delivered he's the one who sort of goes through this masquerade of having the two boys take off or clothes tire up with the shoelaces and so on and then you come to mr hoffman he's the weakling he is the man with the air and everybody knows that he's got a an inability to read everybody knows that he has a low hearing today regarding his reinstatement with the philadelphia eagles and i thought you know four weeks ago or three weeks ago when they suspended terrell owens from the philadelphia eagles i wonder if they knew that donovan mcnabb was going to go down with an injury did we get rid of arguably the best wide receiver in the n f l particularly now that donovan mcnabb who is with whom terrell owens was having problems and was really the r out for the season and what we have here is we didn't know that donovan mcnabb was going to go down with an injury and we have classic monday morning quarterbacking and that's what we have in this case because there was a defense that was honor we have a defense of these two warriors particularly mr wellman came up with the defense and in fact put on witnesses on their behalf they attacked ron wages his credibility they brought in  expert lauren deals who said this guy was so rough actually he didn't specifically say wagers was he said when you're under the taking the amount of drugs these books that were wages you're not going to remember things that went on and this is the it's again and again and again they brought witnesses that attacked the credibility of i believe it was williams and said williams is a no good  unconvincing that's what they tried to do my difference with you is that it was that was good and that maybe your honor you know we got convicted you know i guess that's the ultimate but but that isn't the test the test is sufficient time investigating and and making have enough information to make a tactical decision regarding the defense that they did you see very just totally disagree with you that is to say they didn't have enough information because they not didn't develop the alternative information that would let them know how strongly argument was and his mental retardation and psychosis but that doesn't mean you lose it just means that ok assuming that i decided th farmers and ranchers where his phrase we're going to buy a diminished capacity defense it just wasn't going to happen in this case and in fact the jury actually had some evidence that there should have been a change of venue well your honor just because a jury isn't going to buy a defense in a particular county isn't a basis for a change of jury it's whether the jury can't make a decision based upon the i rural state with lots of farmers and ranchers and respectfully although it wasn't raised it isn't evidence i would submit that no where in the state of idaho would the defense that hoffman is now propounded to defen from the side take pics and take some life from hofmann stabs her in the side and them throw rocks at her evidence i think is pretty consistent between wages and in the end often that it was probably wages ro rocks that killed her and you are your honor i don't i we don't know one way or the our other certainly the when the expert that testified regarding the autopsy was and was not able to to state and we don't know whose rock  it certainly conceivable but we also have to research papers testimony regarding statements that wages made we have anthony mercer who was called to impeach williams's testimony that was  the state's chief witness runway but his testimony is repeatedly corroborated over and over and over again and i just don't understand how of this question the reason he's testifying at sentencing stage is probably because of the custom violation i don't think that evidence is properly in front of us in terms of reconstructing what was supposed to happen at the trial well i don't know about that your honor because certainly as i recall at least the district court in this case actually compared hoffman's testimony we have what was testified to by wages in my my recollection is correct in determining whether there was prejudice or not well but i'm not i'm not about to do that that is to say if i'm talking ineffective assistance of counsel what i'm looking at is what would a good counsel a capital actually a constitutionally sufficient counsel have done and a constitutional professional counsel i'm willing to say would have done the investigation and would have had in front of him or her the evidence of retardation and so on then the question is what would that lawyer have done with it and  with the with respect to the fact that both woman called to testify that the information that they have from max hoffman was the same information that he testified to sentencing although mr colter specifically said that there was poulter knew from hofmann that's when we need to look at his testimony at sentencing because they testified at the end of the injury hearing that the that his testimony at the sentencing hearing was consistent with what he had told them prior to that there but the problem that i have with facts your honor is that there there really wasn't that much information before those two lawyers what they had was an individual who could not read and write that is not incompetence that regarding up that would lead them to pursue a potential diminished capacity defense was their interaction with parkman they knew that he could fill in the blanks he  limited intellectual capacity but that was based upon his speech he had to park in street jargon here difficult commute difficulty in a community communicating but that was based upon his literacy limitations what i'm trying to convey to the court is that then really didn't have any information that would lead reasonable attorney to even pursue a diminished capacity defense or to investigate mental retardation  talking about what had happened coulter go to him and say you know this is what i understand the situation to be and hofmann would fill in the blanks of things that he didn't know now if you have a diminished capacity defense i don't know i don't understand if it's if you're not right at the end can't form in t n how you can fill in the blanks regarding murder of this nature i think i have a real real problem with that based upon the information that they had going on i don't know when you have that level of detail regarding the murder how you can have a diminished capacity defense the notion that you feet max hofmann information and  regurgitate that weeks or even months later absolutely supports the state's position that he wasn't incompetent and that he wasn't diminished didn't have a diminished capacity at that time  mental capacity was severely diminished partly by just by nature and partly by drugs and then i'm trying to figure out ok go assuming that what's the harm and that's that's that's why my so i'll just tell you i'm kind of on the edge with that wasn't a strategy mr and to say that it was a strategy is to mischaracterize the record mr wellman said yes at one time i said the jury pool was a concern and so there must be a grain of truth to that but in stance was to get this jury to believe that wrong way just didn't know what he was doing that one way just couldn't remember what had occurred and yet he doesn't develop that same strategy on behalf of a client that he knows has difficulty comprehending information that he knows something's wrong with but he hasn't taken the time or asked the court for the money to develop that issue the militia capacity is is the defense that would reduce the degree officer that the total lack of intent would be a not guilty but diminished capacity as a defense would reduce it from first to second degree and at that stage especially in light of the many shortcomings of mr hoffman had the jury been aware of all that it is reasonable to assume that they would have at the very least come back with a lesser included verdict the the other issue on the issue of the death penalty and i know that we have not  just want to take a few minutes is the the request by the defendant that you specifically enforce the plea bargain because counsel miss advised him as to the state of the law and so they all say that mr hoffman would have taken that plea now i have questions that the statute with or had said arizona was unconstitutional but it was clear that adamson had not yet become final it was clear that the state of idaho was litigating whether or not and they would follow adams and it was clear that arizona rejected it all at the time that mr harkins attorneys should you know all those things mr hopkins attorney should have been taking into consideration when he advised mr hoffman on how not to misread adamson itself clearly should have had some serious doubts table until that decision becomes final all it takes is a certain odd well it was pending search and he should have known that and he should have not told mr hoffman you know what mask you're facing the death penalty this may be the time to think about taking off the ta eighty six i believe we have the the unified sentencing act i believe had been an active process on the short answer is you're you're a little uncertain both here just a little uncertain yes i think respective parties and we can let the court know with the holiday by the end of next week yeah well i