five minutes for rebuttal all right and then i to help you out but keep your eye on the clock as well thank you in this case your honour's trial counsel did not provide the jury with the most important information that they needed to decide where the petitioner should live or die for the crimes that he committed when he was just twenty one years old petitioner testified that he was sexually abused by his mother that was the linchpin of the defense at both the guilt and the penalty phase is the jury did not know critical information they did not know that petitioners mother jane was an incest victim herself her father used her as his wife from the age of eight to fifteen years in court proceedings that followed the discovery of this it was found the chain was folks functioning at a low adult normal level level lacked awareness of the gravity of her behavior and did not believe she had a problem to resolve jay was seventeen and pregnant when she married seventeen year old david rundle see cysteine your who was the son of a physically abusive father they came to the marriage with incest and family violence models that followed in raising their own children david discipline by brute force beatings with his clothes fis the family dog was scared of david sit senior that it urinated when he entered the room numerous witnesses saw petitioner throughout his life with his face bruised and swollen jane's behavior towards petitioner shocked those who observed it she was cruel and unleashed vicious rages on her children and on petitioner in particular one of petitioners friends who did not testify has said that jane randall made mommy dearest look like june cleaver her sexual abuse of her son was aggressive she tied his hands behind his back during sex just as the hand is a question of degree yes the jury heard petitioner the jury also heard jane who testified for the prosecution deny any of the behavior that was reported by petitioner the incest and they also heard her deny that she exposed herself the problem is that dr yard just didn't know anything about incest he was an expert in pedophilia he when he testified for the jury he said well it's really rare we don't know much about it and he he couldn't address it at all he thought that he was called to be a general witness i don't know what a general witness does but he without any reference to the facts of this case so d got this was not adequate to do what what they needed henson needed to do it but you really didn't answer the question i thought the question was very well put is it a matter of degree because the jury the trial evidence for that came before the jury could very easily imply the existence of all three of the issues which you suggest are very important that they be told about and yet i guess that's why the question was important is this a matter of degree is it matter of the amount of time that they span emphasizing it is  matter of what what is it you're really arguing because the reason i asked the question i thought her question was very good if it's a matter of degree i have a little bit of deference i have to give to counsel and not only that but i have a double deference i have to give to the california supreme court i understand that your honor and i position is that the cat the state courts finding of no ineffective assistance was objective leon reasonable why i understand that's your position but i guess well you tell me i don't know i owe a double deference to that to this finding st of all i owe a deference to the attorney i can't just say give the benefit of the doubt to the attorney but i have to entertain the range of possible reasons that the counsel would have had perceiving as they did and then after that which is i think very big difference and i have got to come up with reasons he could have done it he doesn't even have to come up with them and then i have to say and the california supreme court also had to do the same thing and yet they didn't find it and therefore they're wrong and that means i have to say they were just they had no way to come up with what they did well and that's why if it's a matter of degree i'm having a tough time with your argument it is let me just back up trial counsel in this case recognize that doctor did more harm than good the district court in its opinion in this case specifically found that doctor did more harm than good in fact what the district court said even got to thomas  and the district court stated without a better mental health expert to explain to the jury how what happened to petitioner could lead to significant mental issues it is difficult to conceive that trial counsel's conduct could be framework but the reason i focus on whether it's a question of degree is that i think your case is all about prejudice you have to explain because you raise a lot of different issues here for example dr thomas i don't see how he was particularly helpful to the fans and so there may be issues here and there but the heart of your claim is the horrific childhood that mr bundle experience and how that could humanize him and so if the jury heard evidence of a lot of that albeit not to the level or degree that is ideal and had defenses view now on appeal we still have to get to the question of prejudice yes and the prejudice i think i can address your honor the need for a competent expert was so acute in this case that one of the detectives who on sexual abuse cases and they said you need him they never followed up dr groth who was an expert was never contacted now there is no finding there are no basis in this case for finding that the evidence the trial counsel did not present would have invited an avalanche of phase there's no facts in the case indicating that this would devolve into a battle of experts and i don't believe to address the prick prejudiced that given the seven distinct things that the district court found were wrong and they're very particular and it was a well reasoned decision but given those seven things i think no reasonable could fail to find the petitioner was prejudiced by these serious errors in this case the charged offenses were grave absolutely and there was serious aggravating evidence that required equally substantial mitigation that was readily available but the trial counsel failed to present but but the problem comes with that argument even though the district court did what it could to help you with the and if you will the problem of deficient performance the district court said no prejudice yes and we can and to be fair the district court did as best he could with what we had in front of a to say there was deficient performance even given the standard that i put to you and then after doing fair minded jerk i understand the court's point but on the other hand if all it took was one judge or jurist to say there is no  prejudice and that was the end of the inquiry we wouldn't be here there would be no need for any of this the great rift would be eviscerated and i don't think that that's what the supreme court had in mind when it decided cohen versus pipin holster i think that the supreme cohen so what you're suggesting to be that i have to do what we've said it says no in order to make your case no i think we should look at pin holster and see what what the court did did did there because they it was decided based on the following things the court said there was the district court considered two experts that were not presented to the state court so we exclude them that was wrong so that's a different between this case everything that we presented to this court was presented to the state court in pin holster in assessing the reasonableness of counsel's conduct the supreme court described pinholes to as an unsympathetic client who limited feasible mitigation strategy by guilt phase testimony he boasted of his crimes he said he was a professional robber he was a white white supremacist he had done you know hundreds of robberies and given that testimony the court said it was a reasonable strategy to focus on evoking sympathy for his mother because there was nothing sympathetic about the client there is no basis for a finding in this case that nothing else could have been done and there was also a finding that the supreme court said well the evidence at trial comes out didn't present was largely duplicated it duplicated the mitigation that was presented at trial so there was no new evidence that was involved in penn holster and the court finally said that if mitigation evidence had been presented as is urged by post conviction counsel it would open the door to rebuttal there in this case no allegation that there was damaging evidence that could have been presented had trial counsel performed adequately so the evidence that the prosecution presented at guilt and penalty phase could have been mitigated by petitioners her childhood and your honors this was explanatory mitigation it was not a bare plea from mercy it was not humaniz it was explanatory in puerto versus mccollum the supreme court considered a case where the defendant was convicted of killing his former girlfriend and her book boyfriend and the court noted that it is unreasonable to discount to irrelevance evidence of petitioners abusive childhood especially when that kind of history may have had particular salience for jury evaluating porter's behavior in his relationship with his girlfriend in this case the effects of mitt maternal incest on petitioner would have had particular salience to the jury and evaluating the penalty to be imposed for his crimes this court has said in wharton versus to pelle that childhood sexual abuse can be powerful evidence in mitigation particularly when it is not an isolated event the same is true here this was not isolated the and the sexual abuse the petitioner suffered at the hands of his mother is any extra complete tied to the crimes for which he was tried and convicted in warton this court said that  have seen aggravating evidence about a prior murder that was committed by the defendant as stemming from repressed anger about the homosexual rapes of petitioner by his father and step great grandfather and some big gap that now on post conviction or leave you're saying should have been filled and so as i recall it from the record during the guilt phase rundle himself testify  the extensive sexual abuse that he suffered starting from a young age at the hands of its mother at the penalty phase his defense counsel presented relatives an aunt and uncle who corroborated those claims and was there for counsel to piece together a closing argument during the penalty phase what is this now new evidence going to do that council have the opportunity to do from the case  was presented your honor my view of the evidence at penalty phase was that it failed utterly to corroborate my client's testimony of guilt phase throughout the case the prosecutor called him a liar repeatedly both states stages so that the corroboration that was presented was testimony about mr russell and his wife bonnie may i believe who said that when petitioner was an infant they noticed chafing on his genitals and they said to his mother something's going on here it should stop but we're talking about a life time of not chafing but you know actual sex with a child i would submit to the court that george wrestled corroborated nothing and that the case against their  client it was bait well their defense was based on solely on their client's testimony and it wasn't corroborated at all and it was a disaster what corroboration is there now that wasn't present older than him he told this man on that his mother had been molesting him since he was a child and he said that he wanted to get his younger brother out of the house because he felt it was going to happen to him now that what's the name of this witness george minor i believe in the double check  he was it was george minor and so he that is that would have laid low all the prosecutor's complaints about this is fabricated this is nothing but fabrication there was also testimony that could have been presented by janet thorne now janitor now was married to one of petitioner's brothers and she said that they hel family meetings behind locked doors that lasted for hours and when janet asked her husband what went on in this case what was going on he said abuse janet they are now could testified that one of petitioners little brothers exposed himself to her and asked if she wanted to play with his penis and when she said no the brother said and lend their client some credibility this is not an area it's mother son in incest it's not an area like p t s d where everybody has kind of a of fund of knowledge to draw on this is something that needs expert testimony and that's what the district court found going back to the prejudice in wharton aggravating evidence was a prior murder and the rape of a sixty one year old woman by a much younger petitioner this court found that a jury may have seen the prior rape as stemming from a childhood filled with rape and sexual abuse across generations committed with impunity that's what the mitigation trial counsel failed to present would have done in this case and the prior murder again the court said would have been mitigated by evidence that petitioner was repeatedly raped by his father and a step grandfather during his life a juror in this case might have seen the crime to stemming from the insects incestuous acts of jane accompanied by force the binding of hands and the parallel to between the crimes in which each of the victim was found with her hands tied behind her back and what happened to petitioner is undeniable in dover says ayers this court noted that the causal nexus between the mitigation evidence that the defendant had been let me back up the court noted the importance of a causal nexus between sexual abuse and the crimes and the court stated that evidence of sexual victimization would have offered the jurors a way to understand though not of course to justify does aggression as a product of repeated brutalization that left him suffering with p t s j but it is my understanding  court ruled that because there was no testimony that people who are sexually abused tend to commit offenses of a sexual sexually abusive nature there was no  there was no showing of relevance but by penalty phase there was a showing there was testimony that there was an undeniable connection between being a victim  abuse has a greater likelihood to inflict similar abuse on their child than a parent who has not been so affected but how much my much more likely is not clearly shown i mean it seems to me that they've made the argument and the judge rejected and well they either didn't know what was in the record and couldn't point it out to the judge but in any event the penalty phase where there is a relaxed standard where they had all of the guilt phase testimony in front of them trial counsel did not really offer those records well why how reasonable is it for a court to conclude that counsel should have acted differently then in raising it again i mean if the courts already said no way we're not letting them see and there's no evidence of this so off i guess it's hard for me to say the california supreme court would be unreasonable in concluding can one can take strikingly take issue with the ruling of the trial court oh i understand that but we don't can't do that at this point but as one can take issue with counsel's failure to renew the motion to get those records in well one can take but one now that was the question i presented to you why would a court say it was reasonable for counsel to have did not that when he lost before and why then what i say that court was all i'm trying to do is see i'm trying to make you ask you to see it from the way i see it and then make your argument because i've got to see it that way  am doing my best given these you know the deference issue but the juries in this case were not offered a way to show the petitioners a violation of women was the product of his own victimization and that's what they had to do that in order to mitigate in any sense these crimes the jurors had to understand they did not your honor oh i don't interrupt you but i know you wanted to save some time so if you want to say that time i do want to say it's time and i'm eating into it thank you very much good morning you're on is david untrue holdridge deputy attorney general for respondent there is one there is at least one logical problem that the media and that is when you're trying to say that past abuse by a woman caused to sin or to act out against women you have nothing to mitigate the fact that he also must a little boys and there's simply no theory that they have that somehow account for that largely seems to be  and that's going to undercut any theory that the reason he was women is because he molested he was molested by his mother assuming that occurred at all so that's going to drive the hole in it and it's not going to be very persuasive when to stand from experts all of this has to distinguish between whether incest occurred st is expert theories as to what would happen if there if it had occurred the only occurred there is the california one is crystal clear so all the proffered testimony that somehow the sex with could prove it occurred is just wrong there's not a single case cited that somehow they can do that in california even though i think what counts i was talking about is the degree of corroboration right because he testified and obviously the jury would look at him and he's got everything to lose and may not seem him to be credible so there were bits of corroboration in the record that was presented but there were from counsel's argument more powerful witnesses who could have been called at the penalty phase who could have corroborated the fact that this longstanding abuse did occur and so when i ask for example she came up with the his brother i think was donald's ex wife janet who lived in the home i had witness these closed door secret meetings and could testify to what the brother said about what was occurring during the secret meetings because apparently the use not only occurred to mr rundle but his brothers as well that's pretty record is replete with at least allegations that there was horrific abuse apart from the idea of sex so she she does not know she cannot say this occurred only one assumes that it did occur to start thinking oh that's what she must one which is the only one apparently prior to petitioner realizing that he needs some story to explain himself because he's been car is mr godwin who who says that he would have testified that prior to could say that there was if there was substantial evidence that the mother molested another child that would also be excluded that would be propensity evidence you can't show someone engages in this conduct in one instance to try to prove they did it in another simple there's a flat in admissibility of evidence problem which explains why counsel wouldn't have done this as to first factually whether whether counsel admitted evidence that the mother was molested i would point out that if there was evidence that came in it wasn't the records of the father's conviction her petition is grandfather but supplemental ex urbs seven dr thomas testified that the mother told him that she was molested so and which was why she and uncontested in fact i don't think was contested also in so far as that's an important fact that they think the jurors know they did know it but again if she said but it seems to me as long as you bring up dark thomas how would have been reasonable for the california supreme court just suggest the defense counsel should have called d jury they could keep it kind of things that dr thomas thought about the defendant were absolutely atrocious what would have ever been the rationale to put him on dr thomas in fact was the the most relevant witness the more he was relevant he was from out what about defendants childhood he was the one who treated defendant in his childhood  want that defendant didn't get the help he needed why a c he said the parents weren't going to take the counseling very seriously he said he that that because petitioner went home instead of position or when you're looking to put our blame for something someone did and you want to say this could have been avoided had he got the treatment he needed the ideal person to call is a person who was there at the time during childhood and responsible when you talk about that is the defense of institutional failure which is one of the things that they claimed that the council should have presented evidence of institutional failure that's what dr thomas does he presents evidence of institutional failure by saying he didn't get the what he needed at the institution are are you suggesting though i'm going to take it ever approach to this are you suggesting when dr thomas had already made it clear to counsel beforehand that he had strong negative feelings towards the defendant i mean from the death for other thing else that there were no other doctors which were more favorable to run tools case that they could have called well if you use a more favorable we are and you say that was favorable i i was having a tough time seeing what favor there was but now you say there is so i'm going to give you credit what is there w no other doctor more favorable he is well he is the doctor who doesn't know as much about what happened later i mean if you if you bring into a doctor you hire one now a trial to learn all about  out there's another one he abducted at age fourteen a grown woman he was intended to rape you also find out that he didn't know what to do with the time fourteen despite spite claims that he's been having that's all intercourse for the last five years he rapes he ducks woman intends to rape or but then quote doesn't he doesn't know what to do that would that suggest he's lying about having sex for the last five years and as i point out that was the cl going while it lasted and it's too bad he got caught it be a fair understanding that he's sorry that he won't be able to rape and murder more women that's horribly unsympathetic i understand that but you're saying there's no other no other expert that could have been called that also didn't know about that that wouldn't a bit better than dr thomas and i don't know of an expert and the california supreme court who determines whether or not you can present expert testimony including what that actually would need to know in order to be reliable may well have included you can't bring in an expert hide information from him because you don't want to come out on cross examination and then claim counsel had to do that so no i'm not sure that anyone should have come in purporting to give a petition is life story and telling here's what you really need to understand about petitioner who doesn't learn what there is to know bob titian in that dr thomas was almost uniquely qualified again using home with contempt contemporaneous knowledge and the harm that you say he presented the jury already knew far worse than what thomas said so his saying i thinking i thought he was going to go on to offend well the truth i knew was that he did that that's a wash at best and what he does what he is able to do is say as the most not a person this person didn't get the help he needed at an institution which was which was for that  purpose again the put up the mother did report the jury did heard that the mother was molested but also they heard it just is not predictive again when you when you know someone is a molester you perhaps it is more likely that they were molested but it just doesn't work the other way around and again the comparisons between experts your honor why didn't they get a better one i have to refer you to  where the united states supreme court says being able to review counsel's performance doesn't let you get into reviewing the relative call qualifications of experts that were hired versus those that should have been hired counsel looked into it counsel's not supposed to be an expert on this that's why he looks for an expert and if an expert could they've hired expert testify about the causal nexus between being a victim of incest and then acting out in these ways to help explain why he would have committed these crimes without having the doctor go into the details of what the defendant did where you can't walk the take the latter part st you don't get to close off from the cross examination no i mean if you hire an expert do you have to have the expert delve into the defendant's particular background couldn't you just hire an expert to talk about the causal effect or the impact of my point right because you're saying that dr thomas had to be called because they couldn't have come up with another expert so he was the one who can basically provide the contact he had information that was extremely damaging because  the defendant mr rundle didn't get the help that he needed and he had opinions about mr under the wood stream lee negative and so in response to the questions that were asked of you today you said well they could've called any other expert dr thomas so my question to you is couldn't they have called an expert that would have provided the cause of that says between being a victim of incest and going on to commit serious sexual offenses without i don't know if i have a concrete answer for could that could someone say not to anybody out there it's not at all uncommon we see from these records experts talk about the fact that if you're a victim of abuse you go on to be an abuser no i'm sorry that the evidence here was quite to the contrary your hon but you cannot say that if you are a beauty going to be an abuser counsel already had her counselor you knew from the expert he did consult that that's not true it isn't so it isn't the case that if you are abused you're more likely to be  they tried to present that they couldn't they couldn't show that to the judge so no i did it it seems the evidence in this case to the contrary and if the question is couldn't shouldn't there then look for an expert who would say that the answer is no as well when you get  when you give an opinion you don't think it's particularly favorable from an expert you don't have to do you keep looking for more experts until you find one that is favorable doesn't have a duty to keep looking for more favorable opinions from experts counsel can credit the testimony and we were the opinion that of the expert he consulted why not call jack all required looking for jackman and again he already again he already had an expert and he was it is proper for counsel to trust the experts they consult it be be one thing if you talk to it and ashley says i really can't give you anything useful you need to go talk to someone else that might really suggest ok i don't have the expertise that there is on this subject i haven't consulted with but counsel doesn't learn to be an expert in law school whe he consults with experts and it's up to them to tell him if he needs to go talk to yet another expert because they don't have sufficient expertise we don't have any evidence of just all who he consulted with again what was a few things have been revealed we don't know we don't have councils file the california supreme court didn't have it and they were sitting in the position of knowing we don't know all the people the council may have consulted with the jury already knew so this idea that he was harm four is one that the california supreme court could find untrue because again they already knew all the things about  petitioner that suppose you were harmful what he did provide that was helpful was evidence of institutional failure and you've been here you've got a blame someone else and as much as you'd like to as much as may have you may have a backlash when you try to simply point everyone else rather he he also emphasized the petitioner wasn't always a danger to everyone he could work hard there were people who liked him hum so i don't think he tried to make that the end all and be all but there was nothing wrong with having that as part of the mix and again dr thomas was the best qualified to say that because he was there he was someone who knew petitioner the most rather than someone being called only after it was on trial we had we may have produced a file but you know that's a non issue for counsel to complain that we haven't produced the file when he is steadfast urged that we not get an opportunity for fact development is  questionable institutional failure was not presented at the trial to the jurors the trial counsel had what evidence was presented  the jury russell was added creating facility right i'm sorry i didn't hear it was that rundell was of a treating facility knew that right and the jury knew that he went to y a c they did not know that y a c was not equipped to deal with anybody that they knew that david sr had abused him right i don't know that that was ever a tremendous focus david seniors  abused other children right they knew the jury knew that yes ok yes the jury you know that he was sent to y s c right they knew that yes well then why wouldn't the rehabilitated that he didn't take advantage of the facilities at y s c when we know that there was no ability to treat him dr ackley we have you know affidavits from people that work there at the time dr thomas but by the way who counsel indicated that jane said she was molested to dr thomas well dr thomas testified that he believed that she was just making an excuse for her son so he not only discounted what she said and didn't take it seriously but he thought that it was some attempt to fabricate your honest there were standards in existence has recognized that there were standards at that time porter versus mccollum that i referred to that was a case that was tried in one thousand nine hundred and eighty eight there were standards the supreme court recognized them and under those standards counsel was totally in this case your honor trial counsel to change the result had to change the mind of one juror just one juror we believe that it is reasonably likely that had the jury learned about the evidence learned that petitioner not only didn't take advantage not a petitioner tried to stay juror with this mitigating evidence is a reasonable likelihood of a different result in this case and i believe that under the standards under the law even not under cullen versus panel stor this court  should grant mr rundle relief or at least an evidentiary hearing so that we can develop these facts thank you very much counsel thank you to both sides for your argument in this case one rece