thank your honor good morning and may it please the court this is a capital case from south carolina i represent the wharton commissioner in this appeal from the grant of relief in this district we are of course asking this court fifteen years the state of south carolina has pursued its duty to seek justice in this murder case while its courts have protected the balance between that duty to seek justice and mr williams rights including his constitutional rights but that balance was lost in the district court our legal position can be summarized very simply and that is if harrington versus richter stands then this district court order cannot the district court fail to apply the proper deference that twenty to fifty four review requires and a reading of the order supports that completely when read plainly the order from the district court shows that the district court did not have confidence in the opinion from the post conviction relief judge it believed trial counsel actually two of the four who testified believed those two without looking at the context which that testimony was given what i mean by that but the context the context is when you go into post conviction relief you have not only the testimony that comes from the stand but what happened in the trial and there is a reflection in that trial of the actual strategy that was chosen that was executed throughout the that they chose a strategy the question is whether or not they ignored or failed to consider what appears to be on the face of the record an equally if not more  strategy i mean we make quibble about that but the question is that they failed to consider something that appeared to be obvious on the record and again that goes back to context not just the trial is that basis but what trial coun appeared to be obvious and i recognize that a lot of this may be monday morning quarterback we're not supposed to do that but it doesn't strike me that this is all that difficult to but to look at and say you know in this case however differential you want to be they conceded that they didn't consider syndrome and the judge the trial judge the heaviest judge essentially said that even and despite that came to a conclusion that it didn't matter in the context of this case and  i just have trouble reconciling that position certainly on it well there are a couple of concepts at issue first of all when you look at a strickland claim you have whether the attorneys are fulfilling their investigative duties and i don't that anyone would disagree they assembled the correct team and they had investigation miss bogle saying was not an expert who would testify and feel alcohol syndrome but she certainly had experience in a den of finding the information to to experts or to counsel and fact she testified during the post conviction relief hearing that she was aware of that from the late seventy's ford and it actively sought out whether that was something an angle that they should look at in this particular come to that conclusion but i don't think she delivered that view to the lawyers and i don't know that you can argue ineffective assistance of the mitigation specialist the question is what that the lawyers imo and i and again we have those mix concepts and you're absolutely right i don't think anyone disagrees that she was looking for that and if you might recall from the joint appendix i believe there's an exhibit there and certainly in the post conviction relief testimony if we went over an example where she had things and mother drinking during pregnancy was they are she testified that she was considering the fetal alcohol syndrome issue and i thought rather critically in her testimony in the post conviction really proceeding she explained she was not surprised that the trial counsel did not want to go down that aisle because there was a learning disability there were other indications of concepts first of all i think we need to go back a step and remember that the murder occurred in two thousand and three trial in two thousand and five so two thousand and three two thousand and five is the investigative term at that time and john malden one of trial attorneys who did testify on post conviction relief hearing said that they were not all that focused on feel alcohol syndrome as a defense in the community at that time he said in fact that later on he was correlation is there some review concerning fetal alcohol syndrome i wish i could say that i connected that but i did not so i guess the question the sits in my mind is the the post conviction relief court said that the attorneys made a strategic decision to not present the jury evidence of brain damage et but it doesn't appear to me that they were even aware of the strategic decision what what evidence is there in the record that they were aware of the facts sufficient in order to make a strategic decision well there there are two things that are actually in that particular question posed your honor one is you said brain damage evidence of brain damage and one a specific condition of fetal alcohol syndrome the brain damage evidence was absolutely something that the trial the trial attorneys to consider the brain damage was detected by dr evans and mr m testify they were not going to put dr evans up they did not want to put dr evans up and in fact they did not that was the evidence of brain damage because what you have is you have dysfunction you have a limitation or is fetal alcohol syndrome and the state post conviction court said that they made a strategic decision right and what i'm looking for is the evidence in the record that they made a reasonable investigation about fetal alcohol syndrome and that they made a strategic decision not to present it because it looks like that they just overlooked it completely and never considered it which would make a strategic decision very difficult to make we're going back to the post conviction relief court's order your honor what the judge did was review everything that the defense team had and that includes miss sayings investigation her sensitivity to fetal alcohol syndrome and then the evidence that they actually have from dr evans of brain damage from recognized testing instruments then you have dr halleck's opinion that was a psychological psychiatric opinion you have dr richards so what i'm suggesting to this court to look at it from the investigation stamp rightly when you make it out and that went into their mitigation argument which was credible about this is a bad childhood and all that sort of rot fetal alcohol syndrome is separate from that  i don't know that for any reason is mutually exclusive of the defenses that they pursue the question i keep trying to get at is what was their decision making process to exclude you know alcohol sandr and i'm not seeing that in the record what going going back to what they had it's not that council has to a dinner fi specific conditions specific potential causes of brain damage that's not what council does council looks at what is there from their experts and decides on a theory now what the p c r judge determined thousand and four if you look at the report and it's in the joint appendix these suspected condition at that point was autism well we don't we're not saying that they had to get it and an expert in determine whether autism spectrum disorder or anything else was was there they had to look at the organic brain damage evidence to put the burden on trial counsel to disprove essentially a lit  and that the court may disagree with the choices that are counsel may but they have to there has to be some record evidence that they conducted a reasonable investigation and based on that they made a choice even if a court later may say well if we were to try the case we would have done it differently but at least they made a bona fide effort to try to figure out which is the best way to go and that's what having difficulty finding they did here with regard to the fetal alcohol syndrome well i think it's whether you you view it broadly or you view it narrowly strickland requires a strategic decision based on sound investigation and on reliance of experts when you need that that's what strickland requires stricklin does not require that you go through the d s m for the d s m five now and decide which ones don't apply to me make sure i've ruled those out before i make my strategy there's nothing in there that would suggest that and i would suggest to this court that would be totally impractical but you do have to know who to go to investigation and you do have to have a sound strategy i don't believe anyone on the panel and i don't believe anyone in the litigation has ever said it wasn't strong a sound strategy it certainly was a strategy supported by expert testimony qualified experts and importantly it went with the facts of the case that was not in contest with the facts of the case this is especially important when you see the reliance on dr hallux testimony that this was an episode now when you talk about any type of damage organic damage that is not an episode that has a danger because you're damaging you do not function correctly so that's the damage in putting everything together i believe your honor that you mentioned earlier that these are not necessarily inconsistent i'd agree they're not necessarily inconsistent and a medical evaluation but for obtaining the trust of the jury in presenting that evidence you want consistency and i would suggest to you when you look at the record and again as we said before we're talking context the the entire rabbit hole but this wasn't a rabbit hole there was evidence supporting the existence of a fetal alcohol syndrome issue and the lawyers if you accept the record simply didn't pursue it well two things if i ma one is that they did make a sound strategy based on investigation so we have that as our baseline the fetal alcohol syndrome is not in some way proven what they claim was imposed conviction really is that counsel was ineffective so what was shown is that there was an opinion available there is still a problem with that opinion which was brought out i think very ably on cross examination about contemporaneous standards whether it would have been available to have this type of team approach to diagnosing and of course you have the m r i that does show everything within the normal limits which tends to cut again the a b a said entering identify fetal alcohol syndrome back then is something that worse should consider that in a capital case which mr nettles actually agreed with and remembered that and said yes they did but they are just like this is something that i mean experts could diagnose even back then and i recognize that united ten years later the science may be much more sophisticated but the question is whether as you put it during that window of time these lawyers could reasonably have investigated that theory of defense as a mitigation the fence and come to that i'm out of time but i would like to make one suggestion if i may with the panel and said washington thank you very much one suggest we're talking about going down the checklist the d s m five i do want to call the court's attention to the actual habeas petition that was before the district court now while we're focused on field alcohol syndrome as some of the questions we've heard today focus zone just on that condition and ground twelve of the hay vs petition mr williams is spokesman and issues that he has in his case and outgrowth of genetics would be the explanation more than any acquired congenital circumstance and grant the c's f a s d he's actually moving away from f a s t at this point and his own litigation and that shows you the type of development that we often see in capital work and i would suggest again if counsel is reasonable under stric morning your honour's my name suffer for ber on behalf of mr williams i think the fundamental problem with the analysis that the state is making is it's it's relying on the wrong a supreme court case and this is not the review here and this court's review of what the district court did is not governed by harrington v richter but by wilson v sellers which was a case decided by the supreme court and people twenty eighteen and the reason for that is that this is a case where there is a full reasoned opinion by the state p c r court unlike in harrington the richter and the supreme court in wilson view sellers held that in instances where the state post conviction court has set forth its reasoning the issue is not whether or not there are as there is some hypothetical explanation that could justify the conclusion that the state has come up with but whether the actual explanations that the state court has given were an unreasonable application of of clearly established law as direct as a fourth by the supreme court or an unreasonable determination of the facts and that is what occurred here in this case the arguments that the state has made both in its brief and in oral argument today are really along the lines of what reasoning the state court judge might have made in looking at the entire record but what the state court actually did here i think is quite clear that the state court on the question of whether there was deficient performance state court said that count trial counsel made a strategic decision determination of the facts a situation where is there a way to read that opinion is simply discounting the sort of monday morning quarterback by the defense lawyers this wouldn't be the first time i suppose that a defense lawyer to clean a capital case holding in that way it is certainly that is reasoning that a a state court judge could have adopted but it's not the reasoning here and let me point to two things regarding  that he made two strategic decisions that were relevant to other ineffective assistance claims so he acknowledged that he made a strategic decision not to object to the solicitor's arguments about the  prison conditions being like a small city with restaurants etc he also acknowledged that he made a strategic decision not to call mr williams mother daisy huckaby as a witness she is one of the sources of evidence that it obviously that she drank during pregnancy but there was evidence that was admitted of drinking during pregnancy from the father but he acknowledged a strategic decision not to call her in relation to another issue in this instance mr nettles simply said it didn't came the issue of whether or not to pursue a fetal alcohol syndrome defense didn't come up was never considered never discussed and the testimony of the trial counsel was even more definitive that was mr malden who was at the time the solicitor excuse me the the public defender for the circuit and his testimony  was what possibly could possibly have led me to not conduct some sort of follow up is just beyond me i don't have an explanation for it and this is in the joint appendix at five twenty eight i surely didn't do it intentionally i will sure you i someone can't articulate a reason is when they say something like i i decided to do this i can't remember today why we decided to do a miss so if i recall mr brown's argument it's that the record i think is clear that at least the mitigation specialist was there and sing around this issue of needle alcohol syndrome and she seemed to suggest ms brown the fact she presented her conclusions even of tentative to the defense team that the mother drank during pregnancy and that there was evidence of brain death there is no testimony whatsoever that she spoke to them and told them this means that there is fetal alcohol syndrome there is no testimony anywhere in the record there was discussion of whether or not to pursue fetal alcohol spectrum defense as a course of the allowable syndrome deficiency argument as part of the mitigation case and that's why you know in their brief the state argued that there is any inconsistency between ms vogel sang's testimony and the testimony of trial counsel and attacked judge chiles for making what the state characterized as credibility determinations there's no conflict whatsoever in that testimony there's not a shred of evidence whether it's testimony from his vocal sank or any other witness anywhere in the and indeed would investigate and could determine make a diagnosis even if it's not the science might not have been a sophisticated as it is today yes and again there's undisputed testimony on that point from for example there was reference before to mr nettles that's money but mr maule then again was even more definitive on this point he said that he was aware of this and when he was asked i believe it was on i don't recall if it was cross examination work or redirect examination what he would have done in that instance his answer is i would have gone in consulted with a neurologist and there is also in the p c r had drank during pregnancy or b of the neuro psychological testing that had been done that revealed evidence of frontal lobe damage and that is all set forth in dr risers affidavit which was part of the p c r record and is in the joint appendix at page ninety seven so the building blocks of the fetal alcohol syndrome defense were in front of trial counsel building blocks is really another way of saying red flags and they did not act on them and that's where they fell short and you know the duty of trial counsel on this is been  supreme court cases series be up and wigan's that you know just because counsel pursues some mitigation strategy doesn't mean that they are obviated for a need of a feeling their duty to consider what all in a reasonably productive mitigation avenues might be and the state in their argument said essentially  that if trial counsel chooses to pursue a strategy in this case to present the medication case that they did it necessarily means that they've chosen not to pursue any other strategy and therefore constitutionally deficient because either that decision was not based on a the decision to pursue that strategy was not based on a reasoned strategic decision of considering alternatives or it was name informed strategic decision and that is essentially the message of what would what happened to your case if the records show for instance that the attorneys did not conduct an investigation on fetal alcohol syndrome but they talked about it and they decided that it was too much of a double edge sword and would show future dangerousness and they were afraid to introduce that this doesn't that in some ways go to the question of prejudice which mr brown didn't have much of an opportunity to talk about but if it's true that the evidence might have been through and stored that they perhaps would have been able to impeach the diagnosis through the i and other evidence tending to show that there was a normal brain scan and or impeach the evidence of actual drinking by the mother doesn't that make it more difficult case on the question of prejudice well there's some factual assumptions built into that your honor that i think are not ones that are in in the record i mean those could be arguments but you know the issue i think you have to start with the standard of review and  because as we pointed out in our brief the p c r court did not conduct a prejudice analysis in the manner described by the supreme court in port of the mccallum that means that the novo prejudice review and in essence a value weight the mitigating evidence that would have come in and compared to the other mitigating evidence and the aggravating evidence it's in the record here on the that i've not positive which one but the fact that there is fetal alcohol syndrome doesn't imply that in the structured environment of a prison the person suffering from feel alcohol syndrome is going to be at risk of future dangerousness the whole point of the diagnosis and this is why would have been particularly powerful in this case is that it it renders the the person who has grown up with that brain damage as sensually a child like level and particularly vulnerable in moments of stress and strong emotion that was in the testimony  so that was the situation confronting mr williams of break up with a girlfriend in the unstructured world of every day life prison which was the alternative that the jury was considers a very structured environment so that the generic double edged sword concern is not particularly complex nor was this a case where the state was arguing future dangerousness the prince of the argument that the state made that the solicitor made was for one there are mean and evil people who do not deserve to continue to live with us that's it page six thirty nine of the joint appendix presenting evidence that mr williams was born with this condition because of his mother's drinking would have given the jury a a powerful answer to that but there wasn't any answer presented a tr what is the consequential difference had they come had they relied on that diagnosis alec knew pretty much of the full condition it didn't talk about brain damage so much but he did talk about the consequences and how it affected the defendant and my question is did is the act that if had t used the word the law aka whole syndrome and recognized the symptoms of that what would they have said to the jury in addition to what they already said to the jury based on their observations that he they talked about all these things to the jury and the question is what more would they have said had they made a diagnosis actually of that particular syndrome so i think this it's not a question of semantics it's that it's a different condition with different consequences that come from it that are meaningful in ways that would have been quite helpful in dealing with the jury as i said earlier the consequence of you know alcohol syndrome in this case partial fetal alcohol syndrome is that in particular it means that notwithstanding outward appearances notwithstanding a high i q which masks the condition person in effect is childlike and our judicial system has long recognize that there are there's a difference in culpability for people who are children or operating at the level of children deserve a different way of saying that he was immature i thought here's a new martin mentioned that that was evidence presented in the  well i think there's a difference between sort of characterizing someone's behavior and giving a clinical explanation for the i think to the extent that there was evidence in the record that he was immaturity it was looking at the behavior as opposed to the explanation for it and you know we're talking about of the  i thought would have been fairly helpful to the event and he said he had that the illnesses that on each other contributing to a powerful sense of hopelessness and helplessness even to the extent he had his own suicide attempt in two thousand and three and my point is i haven't matched up all the consequences but i'm wondering when you're trying to figure out how best to conveyed to the jury that this man was had less culpability they said some very powerful things and they had all that they don't didn't howlett know about brain damage and chose not to a person is unable to plan and think ahead and of course they had the diaries and they had their draft letters and in there and it looked like he had thought about this and planned it out the real question  prong which we haven't heard much but it also may have gone to the fact that when you have an expert like how like and these others that knew of brain damage but had to face the m r i and had to face some of these other consequences the lawyers didn't recall why they went down a particular route but the evidence was i'm in the team and had been discussed among the team members and they presented a very powerful mitigation case that for experts and they had two of the best lawyers in capital cases and then they had this washington law firm participate in so you have a lawyer team this was not like a wiggins situation these lawyers were had looked at all of this and the fact that years later they couldn't figure out why they didn't identify particular f a s hardly as damning if they knew there was brain damage they did that and they chose not to present that the jury they found more powerful to have these psychological diagnoses which contributed each other and gave these effects which explained or tended to explain the conduct of the defendant  i'm worried that we focus so much on the particular diagnosis and we're not focusing in on whether these lawyers were acted on reasonably and the consequences it's hard to think that a team of lawyers with that much power are going to be found by us to be so constitutionally in effect of because they didn't come up with the f a s diagnosis even though they had the data the support it i mean that they knew they knew that she drank they knew that he had brain damage was one of those doctors actually talked about it came to the conclusion is brain damage  so is that the standard that we should be applying but go ahead all right i understand i see a red light but this is important i think i will extent will be here thank you judge so there are a few i think questions packed with a diagnosis of fetal alcohol but they didn't pay much attention they came very late it's a five days before trial but my point what is if it had come in abnormal then it might have triggered a whole new space exploration but that they referred to the combination of psychosis the problems and apparently thought they got a more powerful impact for the jury on that well that respectfully runners where i i would disagree because when you when you characterize it as they found more powerful that imply us that there was a decision making and what was missing was the connecting of the dots they had the individual pieces of mother drank brand dad bought in order to get to and f a s diagnosis but they didn't need to connect the dots to say what was the effect on the defendant what is the best defense we have lawyers here trying to defend a defendant and communicate to the jury an explanation which would spare the defendant the death penalty but and so they came in with some very powerful testimony explaining all these various things about how he was highly disturbed he was very sick isla's hopeless he was helpless episodic highly depressed very short attention span and maturity very weak academically these are the things they all presented and my question is if they had diagnosed f a s what more would they have said to the jury well i think i've gone through some of the things that one can say what they already said that's my point in other words they picked clearly picked if they had this knowledge and it's indisputable they had this knowledge of brain damage i holic out it and there is a question of whether what's the woman's name whether she how much she communicated vocal so yes yes yes but there's no question how much she communicated but clearly the others had information and they'd actually did an m r i following through on that and that didn't lead to anything but the bigger question is not whether they missed the diagnosis the bigger question is they miss any evidence that would have helped their cause in front of the jury and my point is they had we have a team here with a lot of data  experts we have what i don't know how many lawyers three or four lawyers all very highly experienced and they presented a powerful mitigation case and all these things i've talked about this week academically in immaturity and the short  tension span and highly disturbed sick young man depressive episode most serious depressive diagnosis we have seen on the in the manual of obsessive compulsive disorder  then they said these all fed each other in him the jury heard a lot and the question is what more were they heard if they heard those words the low alcohol syndrome and that seems to be the whole argument you're making is they didn't use that language and that would have been great for the jury not that they didn't use that language but that that jury was deprived of the testimony about what the effects of that disorder would be including testimony to the and i'll let you answer this one question and the question is what additional symptoms would they describe to the jury about this man that was not already presented based on the other approach they took which is not to focus on brain damage so i i  think it's not simply a question of of symptoms and i won't reiterate what i've been through i was also a bastion of degree and it's a question of of level it's unclear what more they would have said of the jury that they didn't say the jury had they been counseled that you believe would have been dr adler for example testified that the impairment this is a trying to panix five seventy three that the impairment from fetal alcohol syndrome is is much greater than that from bipolar disorder which was what was testif trial except and bipolar disorder was one of other things diagnosed and then the of the testimony was that they contributed and created a greater condition then the individual additions of the two conditions together well i just i'll just say this i think that it's a question of the additive value and the sun and it's but i haven't seen in the record i haven't seen in any brief anything not even iota of what more would have been said to the jury that would have helped the defendant that's my point it were focusing on whether these lawyers there was no protocol for f a s back then that this is all been developed they knew about it since the seventy's but this drinking during that time they suspected brain damage they actually diagnose brain damage they did an m r i just to confirm it had the m r i came abnormal i assure you that team would have said let's hold up where we want to put some more  and they got it only what five days before the or the sentencing but the my whole point is they covered just about every aspect of this human lean in a with an explanation of how he could have murdered and not had culpability and well i think i'll just finish with this joe and i know i'm over its bit i think they didn't cover this explanation and to answer the point you made about you know how can we imagine that such a talented and large teen how can that be ineffective assistance no i don't say that well i used to be saying here we have a team it's not like wakens they see a lazy and didn't do it and then follow they had four experts they were figuring out their defense they talked about this stuff now if they don't remember the reason they didn't pursue one course as opposed to another they knew of the brain damage they knew of the drinking they didn't apparently nobody identified f a s that's no testimony to support the notion that f a s was actually discussed but they did develop a very sophisticated mitigation case  and and the question is does that go to do this or does that go to the effectiveness of counsel my only point was there's no evidence to suggest these guys were fell into the weekends type category that we were toast asked the question did this defendant get reasonably objectively reasonable representation at this time and i think they got a pretty high level based on what i've seen and what they put together what they were able to tell the jury now the question is that may not answer everything your argument is they didn't discover f a s as f a s and my question is ok they discovered a lot of the aspects of a brain damage they knew about the drinking they knew about various other aspects of my question is what would any one of those persons have said to the jury in addition to what they did testify so it's  s or are the names again if i don't think it's a i agree it's not the label it's meaningful what's meaningful is the explanation of the difficulties of behaving in society that when you have a person with a difference between their i q and their ability to control executive function and you have some of the p f a yes so they can ask weak academically i say very weak academically the  had to have remedial services he was very short attention span and he was in mature these he was diagnosed some point with h d h d a d h d and it was roofie his medication was refused he dropped out of school at the age of eighteen only in the ninth grade that covers that part and then they went even further and they talked about how he was sick he was highly disturbed he had you're suffering the press major depressive episode if this is this a lot of powerful stuff well i mean some of it i think judge those are symptoms the fact that he dropped out of school those are things that happened and what's missing my room but there's a difference between acting like a child which unfortunately many of us do it times and if i do that it's inexcusable if you have someone who does that when and the reason for their doing it is you  that part of the record one way or the other but whether there was whether there was that he's in the records or not it's i think there's a difference between making that statement generally and and connecting it to the consequences and i then i couldn't find it more than what was said i mean what what was said to the jury was a lot and i'm trying to find out what attribute what's description about the defendant would they have said more had they connected the dots to f a s but i think there's and even though they had some of the medical diagnosis of that and your answers by basically that he was one child no fit it because of that because of the deficiency that he had yes he was operating at a childlike level and top of that is the condition because of the nature of he asked was masked by him and therefore i haven't seen testimony as strong in mitigation about the witnesses this child the only positive thing for the government that they had to include as he knew right from wrong was able to commit a crime but i think that's actually quite relevant to the analysis because if we were assuming for the moment deficient performance than the standard is whether or not there's a reasonable probability that might have led to a different outcome or sufficient to undermine confidence in the outcome this was a close the jury was split nine to three they deliberated overnight as you point out there wasn't much on the aggravation scale and the only aggravator that the state alleged was that this was done in the course of it of a kidnapping and the kidnapping was essentially the murder as well so you know when you balance that on the one hand with yes there was a lot of other mitigating evidence if there been some additional mitigating evidence i submit that there's a reasonable probability the jury would have come back alcohol syndrome is profoundly different than any of the other mitigators that were presented trial and the reason for that is because of the unique characteristics of this brain damage so the first is that you know alcohol syndrome arrests an individual's brain at the level of a young child such that they never develop past on average the level of a six year old in their adaptive skills and in mr williams case the level of a nine year old and so while mental health conditions give you a less culpable adult what you know alcohol syndrome gives you is a child in an adult's body and children are fundamentally less culpable than adults are and the second pope piece of that hand phrase that that would give you a cause and effect that the other mitigation evidence would not it would put the other evidence in far greater context and explain mr williams actions in a way that the other evidence could not because the second part in which fetal alcohol syndrome operates in this it is unique from any other condition is that it combines a average level i q with adaptive deficits that are equally bad as men as intellectual disability and there's no other condition like this where a person functions essentially as an intellectually disabled person and in mr williams case the record is undisputed that he had profound adaptive function deficits but it excludes them from an intellectual disability diagnosis or has in the until the very recent past because that those deficits coexist with the high heels and so what you what you have is somebody that is not identifiable under the kinds of services that are offered to intellectually disabled people but that has all of the same deficits the go to the heart of culpability of these two groups that we know are different in u s jurisprudence we don't execute intellectually disabled people because of their deficits and in reason and we don't children because of their deficits and fetal alcohol syndrome goes to the exact same kinds of of issues in a person and the jury never got to hear that information and even without hearing it three jurors were were leaning towards life and they were the jury was badly conflicted and so getting that information finding out that the brother's drinking didn't just give him a bad life but made him a fundamentally less capable individual that would have packed a powerful punch and so let me move on to address the evidence that they had and what they didn't didn't do because have not argued it before this court although when german when germany was alerted to the fact that mr williams is a german citizen as well as a us citizen and the group  itself they were able to investigate in germany and gather a wealth of information that had that information gone to the experts would have permitted a defense but here not you're not claiming that some sort of the question of the stuart sword i think you make of a fairly powerful argument as to why this might have made a difference in a juror's mind but it's it could have made that could have been the different impact on a jury to suggest that this is someone who has poor impulse control as a result someone that needs to be sanctioned by the ultimate sanction that the law can provide so what about that not at all your honor and this is this is exactly why  so crucial in this case because they'd already put on a defense of bipolar that talked a bit about his impulsiveness so that the idea that he had trouble controlling his impulses was already before the jury and the there was also before the jury at sentencing many a future dangerousness expert that explained that he that mr williams had done very well in prison and would continue to do so but fetal alcohol syndrome explains whatever tension exists there because people who get a alcohol syndrome like children function very well in structured environments and that is why their deficits don't become pronounced until later on in life when they leave school when they leave their homes and so the jury already knew that he had trouble controlling his impulses they had testimony from an expert saying that he was going to do well in prison he already had done and fetal alcohol would have brought those two things together and explained why even though he had trouble controlling  the unique nature of his condition meant that he would do ok in prison that's that's precisely why it was so prejudicial to miss fetal alcohol syndrome in this case now i want to talk and your psychologist that said that in these are the exact words that there was some evidence that chris had brain damage but not all brain damage is created equal as your honour's well know there's some brain damage like a spike the head that makes you  somebody who is violent and then there's some brain evidence that makes you like mr williams a child in a person in an adult's body a person who has an average level i q but functions like someone who's mentally disabled and sue to stop there to not follow up on what kind of brain damage it was in light of the fact they already knew as a risk factor from march two thousand and four and the list of twenty three respecters that the mother drank at that point not to follow up was they never got the nearest psychiatric assessment they never followed up with that information and they never even gave that test that report to their testifying experts dr howard for example psychiatrist to investigate f a f a s and the state never challenge that affidavit they never called dr grossman they never cross examined him so those failures there's no explanation for those information this is profoundly different information going to the jury about what this diagnosis entails and the science on that diagnosis was unconscious was established in the ninety's the fact that it makes you as actively a child that it gives you the adaptive function of a mentally disabled person that could if the jury had been able to place that on top on the top of the existing mitigation case there is it is more than likely that at least one juror would have gone the other way but they never got to hear that and the key slot in the circuit in the supreme court is clear that if there are if there are serious red flags of a unique and powerful minack eater and counsel fails to follow up and investigate those flags which they did repeatedly in this case with no strategic decision that's if that is an unreasonable in an investigation and it's objective leon reasonable for the  strategic decision and if that strategic decision was based on a complete investigation or not because the point here is he couldn't have made a decision about whether or not to present fetal alcohol syndrome or not to weigh it against the other the rest of the mitigation he's because they never followed up to see if he had it and what it meant despite repeated red flags and warning signs they failed to follow up as a reasonable investigation and that that is what makes this case so rare and different is that the like in wiggins like in like in gray you had these warning signs that would have caused the reasonable attorney to look further and if they had look i'd like to go back a little bit to the diagnosis that you've heard so much about the long term there's been a suggestion this is profoundly different but i think we need to look at it that first of all in this respect the world of the medical profession in diagnosis will never co exist precisely in the legal world this is a legal issue the investigation the extent of the investigation is a legal issue as a legal framework that we look at we're not looking at a medical framework for instance although there's been a suggestion that fetal alcohol syndrome is profoundly different than anything that the jury heard in this case  exemption from the death penalty it is a possible cause for damage and what is very clear in this record is that counsel knew there was an indication based on recognized testing instruments psychological testing instruments a measure of the eries in reviewing what counsel supposed to do and of counsel met that obligation and again this is controlled by richter it is difficult to establish an effective assistance of counsel when councils overall performance indicates active and capable advocacy not diagnosis advocacy i think i think that courts have been distracted by fetal alcohol syndrome and if it is the pro different condition that has been suggested to you today it is inconsistent to argue in this same litigation that oh it's not really feel alcohol that's important it's a genetic background that's profoundly different what we see is this is advocacy and what the record shows is that council back in two thousand and five which is very important to remember contemporaneous standards at that time and what would be expected what they would be expected to know is that they looked at this they put together a very comprehensive defense because what they were looking at was a criminal proceeding a sentencing  proceeding and what is that issue is the character of the defendant and and the circumstances of the crime was particularly powerful in the defense that was presented below is that it is not in conflict with what the jury hears it explains without being in conflict most of the defense evidence went to this episode the type of defense it even flow into the lower risk factor for inflicting violence within prison the adaptability it was begun in closing in the first place with mr mcdougal saying we see a change it is shown in the journal itself the investigators noted the change in this man so that there's a change in two months it's an aberration it is not his makeup makes him more violent this is a very capable very capable defense the investigation is sufficient and i thank you very much and i will come down agree counsel and the proceed on