good morning i mean good afternoon two assignments of error of course that the court has questions about the other issues i'm happy to discuss those the first assignment of error is whether or not a trial counsel was ineffective in failing to conduct an ask for of why deer i racial animus in this case under turn of vs mery defendant has an absolute right to enquire about the issue of racial bias in an interracial or across racial case in this type of case especially that issue is even more stark than simply a white on black crime instead this case takes place in the context of the united the prison here in the state of ohio involving the white prison gang the area and brotherhood and the african american prison gang of the folks station this case started when the folks nation attacked a white inmate juvenile inmate at marion barry madison for the purpose of starting a battle between the folks nation in the area of brotherhood do we not is that a conceded fact or it is it is the mony by a few people it's testimony by a few people that that was the motivation for the attack on haggerty no doubt haggerty was not a major side says right i'm sorry ga does the state agree that that's the motivation i don't know what the state thinks the motivation is but it's clear the dog haggerty was attacked by the folks nation that had he was not a member of the area brotherhood but he was being protected by the area brotherhood there's also testimony coming from post conviction that the folks nation was gearing up to attack john stoll jets directly in the area and was racially biased and to the issue for development of those factual issues there's there's a number of different procedural problems one that issue was not developed in state post conviction because the issue was raised on direct appeal and was decided on the direct appeal by the ohio supreme court so the issue of trying to reraise that in state post conviction is this court is well aware ohio has a very liberal use of race judicata to prevent further litigation in state post conviction on issues that are raised on the do the issue was raised on direct appeal how was that raised the issue under turner was raised before the supreme gurn or yes as as because the way you stated it was turner says you have an absolute right to ask but it doesn't say you have a duty to ask because it does not it does not say that you have a duty but in turn or itself it recognizes that it is incumbent upon defense counsel to make that request and that's where the issue of ineffectiveness are you saying when you say incumbent upon that sounds like a duty and it and if it's a duty then it means you can't make a strategic decision that in especially in this context that maybe you don't want to raise racial issue in the sense that one could imagine a lawyer saying well gee you know black jurors are not going to be sympathetic to your defendant and the more we emphasize that the less sympathetic we're going to be and lots of white jurors are not going to be and i thought part of the defense was in effect what you see the sort of one player protection but not specially racial protection that you said they attacked me i'm going to attack them not i'm out to get them because of their race and i would think the defense attorney would very well want to play it down and that might be a case in in a different factual situation this case was rife with racial animus from the very beginning this  but how do you play that in picking jurors as opposed to the fear of tripping over your own feet and making it worse there i don't think given what the defense lawyers knew prior to trial and that is that their entire investigation in this case was relying on the files the prosecutor gave to them that they news answer this case where things are all known they weren't there as the post conviction record demonstrated there were lots of things that defense counsel should have been able to fi a heck of a lot they did get it i did they did to the prosecutor turned over a lot of materials but all of those materials demonstrated that the issue of race was going to be front and center in this case well from the state what sense i mean obviously you know the guy's a member of the arion brotherhood you know and there are two gangs that are one composed primarily of whites i guess and the other composed of black inmates so it's not primarily judge it's exclusively ok well you know i don't think that matters so i mean it's obvious that there's a racial element to the underlying facts but it's less obvious to me that counsel had a strategic imperative to do well on that in a case where his defendant is a member of the arion brotherhood usually not in and during trade to yours and that's exactly where they should have done the voice here they should have asked but he could just choose to sort of you know minimize the air time that that issue gets at the trial could mean there is no there's zero issue what supreme court case turner's not the case because turner says he has the right to ask what supreme court case would make obvious to the ohio courts that on this fact pattern he had an obligation to ask but there isn't a supreme court case that says it is ineffective to fail to avoid  on the issue of race but it is very clear that the supreme court in this court in all the other courts have found that a failure to properly conduct for dear is ineffective assistance of counsel i mean you know i mean you know what the hay vs law supreme court says the the more general the authority you rely upon the more latitude the state has so what is what is then the most specific supreme court authority you would point us to that would make it pretty much obvious to the courts that they counsel had asked these questions well i think if they could first you start with turning the language and turner says that this right only exists if counsel asks for it  which tells counsel that's your job but ask what it is it's not going to happen unless counsel asks i mean as judge boggs pointed out i mean let's say that turner's about a right not an obligation i mean what is there a case beyond that that you would point us to that we do this or that this is the the way the issue of ineffective assistance of counsel develops but the courts recognize that there is in fact a right and then when counsel doesn't enforce that that's in effect i guess i mean my point is that it would seem like reasonable minds could differ as to whether it was strategically wise to ask these questions and so if there is some supreme court authority  that would make clear that actually the only reasonable approach here would have been asked a question that would be very helpful if there isn't that's usually a problem and maybe it's case but your honor if you're asking about whether or not this was a strategic decision then you already made the decision counsel should have access i don't there's only one way it can be excused as a strategic decision and that is the idea that council should have asked the question in the first place but chose as a matter of strategy not  their performance at guardia was woefully inadequate on several fronts i don't think you can look at this and i have tried i tried to figure out some answer to your very question for what would be the strategic reason to not ask questions in this case i mean i think the court pointed out what they read it but you cannot minimize the impact of race in this case by simply burying your head in the sand and hoping the jury doesn't get it because the issue of race started with the opening statement of the prosecutor in it ran all the way through to the closing argument where the prosecutor stands up and says the closing argument the reason this happened was that johnstone jets didn't want to room with a black man the issue of race is rampant in this case the issue of the area brotherhood even if this had been a white on white crime and the issue of inquiring about attitudes towards the area and brotherhood in a capital case where the jury is given incredible discretion to decide whether somebody lives or dies and you leave that sitting there not asking what is your attitude towards a white supremacist organization what is your attitude towards violence in prison especially in a community like madison area where everybody on the jury and family and friends who worked inside that institution and yet the council's as ask the judge to ask any question this this is a strickland claim and so what about judge clay is the question about prejudice i mean you have to show prejudice to just assume that for the reasons you just recited i think we look at prejudice in the same way we would in a fourth amendment case under stone versus paul when you have an issue of ineffective assistance you look behind to the underlying merits of the claim to determine whether or not had the lawyers asked for this what would have happened and we know under turner that the  ns the impact that would have been to ask the question now how do we get this point well these years after show that some juror on that case may or may not have harbored racial animus and quite frankly that's not a possibility at this point we don't even know whether the jurors are alive we were not given the ability to this issue wasn't raised by post conviction counsel and they were able to litigate that and we do have the issue of whether or not there was ineffective assistance of post conviction counsel in this particular case but they had it being able to come back and demonstrate what turner presumes to be the problem under turner there is a presumption if the questions aren't asked in a capital case when there's racial issues involved that there was pre hear though in terms of the prejudice in effect for you to get a better outcome what you need is a hyper unprejudiced or prejudiced in your favor jury or to get off it's not that there's one person on the jury that's preventing a good outcome for you and is there anything about the sikh you know usually in that when you have that kind of claim we say well the next alternate juror would have been much better and i don't see any of that and quite frankly that's actually a part of the prejudice problem in this case is that because the lawyers never asked for the questions the record gives no indication whatsoever about the attitudes and that is exactly was the underlying principle that came through in turner is that it's the need to discover these items where it careens required like that is that it held that noted this should defendant's counsel declined to requests for deer on the subject of racial prejudice when no way require suggests that the judge broached the subject sue a spot on to the desk that sounds quite a bit different from us from the court saying that the issue was required to be raised and the problem with the way the man is just speaking for myself as presented here it seems as though you're asking us to presume prejudice based on structural arrow from failure to the jury about racial prejudice since there's no that no i think i think it says i think what it's getting at is that it's only required if the defense counsel asks for a but how is that different from all kinds of trial rights a person has an absolute right to testify but he doesn't if he isn't all right and it's a strategic decision frequently as to whether to call them or not so you can't presume error and prejudice from that you seem to say well you can't even look at a possible strategy until after you've already decided that it was it was faulty lawyering and that seems a little i mean in my what's the difference between my kind of example and this case that if you're saying that that if you have a right for it right to it then you must do it i don't think there is a must i do think not because i don't think there is a must that the lawyer must ask these questions but if you're going it once you say that the defendant has the right to have these ask if counsel asks for that in those cases in which it should be done it is ineffective for counsel to not do it right there you just said in those cases where it should be done who judges and al whether it should be done and i think you have to if there is a strategic issue i think we look at this in the same way we would try to resolve in hevia so fourth amendment suppression issue and that is through the lens of stone versus policy and that it will you don't look to the issue of whether or not the suppression motion will be granted when you go back to us whether or not defense counsel was ineffective for failing to raise the suppression issue which then allows you to litigate the hate the fourth amendment issue and he's then getting merits if that's the situation that we're faced with in this case than the proper remedy is what you would do in a stone versus policy to ation and that is remanded back to the district court let's have that evidence cherry hearing let's do those fact developments let's find out from the d whether they did in fact have any type of strategic interest in deciding what to do in this case and let's go out and talk to the jurors and find out what was going on but it in order to look at that question you have to be able to look at is a mystery that has the opportunity to in fact prove prejudice by getting to the underlying facts of what happened but simply saying where there could have been some magical trimming ass u this of this were to go for an evidence or hearing in the us and case recognize that race issues are different and six or six b does not prohibit development of things that happen inside the jury room when the issue is issues of racism but when there's some there's some hook that's come out of the jury room right in that case what you had was when some some major or right there was at least some fact of element that gave an indication that there was something wrong in the juror nothing in this case we don't we they're going to ask about your stone versus power point because i didn't see that i mean  way of framing this i mean there's a number of situations like this right eight versus oklahoma says inmates defendants have a right to expert assistance it's ineffective assistance when lawyers don't ask for that assistance we find the psychiatric assistance  but but really can't go beyond that and hate us no but in the state courts the lower courts in the federal courts in nine capital cases have recognized the need under aig to provide other types of experts and the idea behind a kit is that when lawyers have the right the ability to get assistance for their clients and they don't ask for the assistance that can be ineffective assistance we don't need a case to come back and say it's ineffective assistance if you didn't call this specific type of expert the same thing comes up in the issue of why deer you have the right to have this why deer conducted that means that it's incumbent on the defense counsel to make a strategic decision maybe to ask or not ask but in this particular case there could  the crime was committed an imperialist that's the aggravating circumstance that the jury is told but turner and all of the other cases lack of personal eddings all of the cases recognize that when the jury is considering these cases they are stabbing that the crime of occurred in and the tensions and that's what makes it a capital case but the prosecutor repeatedly argued that this was the racial motivation of this case that it was the area in brotherhood that mr sturgis packed his bags and was ready to move out as soon as this attack happy for the attack happened because he didn't want him housed with a black man those are the arguments that the prosecutor was making to the jury at the mitigation phase i mean for all we know there might have been some racist whites on the jury you know that more than balanced out the concern here it's very possible though i mean how how in the abstract do we say that he was prejudiced then we send it back and that's have it here more racist whites and less on racist whites on the jury in which case i'm sure the prosecutor would have used their challenges for cause on the fact that that that was true than your prejudice goes away i mean you could i mean did if the credit is to be crass about it if you're the defen attorney and following your theory that is if if rather than the theory being no guys no matter what they say this is just a fight in prison and you shouldn't be treated your theory seems to be he should say you know this is a fight between blacks and whites and i wanted to stay on our side isn't that the theory of the church of advancing nothing wrong with that as a theory i actually think there's something very wrong with that no lawyer would ever make a strategic decision that i can get a jury of may want that you're ok you don't have a right to that type of drug but you know only you're a seems to be you should have asked questions that would have helped you get that kind of juror unless we're willing to presume that the people in madison county were racist so that they could count on that type of jury pool coming in you can't say that was their strategic decision so you're saying he should or inquired about whether there were any whacked yours that would have been biased against an area nations whether there were black jurors who were biased against the area brotherhood or whether there were white jurors who were biased there or there are white people who are offended by the the word nigger that was used repeatedly in this trial there would be white people who would be offended and consider death for a white supremacist if they wouldn't consider death for somebody else that they would consider the racial motivation of this case is a reason to kill and we know it in this particular case because one of the jurors actually sat during voir dire in response to a question by the prosecutor well sometimes there are people who just the state needs to take care now i don't know whether that juror meant that as a race issue or as a poverty issue is a bad issue i don't know what he meant of course we don't know because the lawyers didn't ask any questions but it's very easy to look at that and say john stoll gets the area of brotherhood and all  it stands for is why we have the death regardless of the aggravating circumstance of this happened to have occurred in prison could have been entirely reasonable judgement on their part and you need to know because if that's the case that  never sat on this case because they're considering his membership in the area brotherhood as opposed to stabbing the guy alleged as opposed to the fact that this occurred inside a prison that's it that the aggravating circumstance that they should have been considering is only that it occurred in a prison the issue of the the race shoe of the battle between the weight gain and the blacking that is not supposed to go on death side of the table but we know the reality we know why that's why the prosecutor used that stuff in this tr afternoon i'm just low on behalf of the warden in this case and i think that mr ben's us final point that reese is not supposed to be a part of this is the strategy that the trial attorney has adopted in this case the defense attorneys theory of the case was that this occurred inside of a prison because of the prison environment and that's the evidence that they presented that mr stone jets only intended to have a fight to stand up for drug haggerty to kind of send a warning to mr watkins and the defense counsel's goal the strategy that the ohio supreme court and the district court read into this was to downplay the issue of race in this case it was the prosecutor school to emphasize the racial self defense that this was an intent to kill case that occurred inside a prison because the state was required to prove purpose to kill or it was a clearly foolish judgment given the racial factors in this case could be very divisive and from the beginning of i think their board to hear and the decision not to worry about race plays into the theme the trial counsel trials defense council adopted throughout the case and through mitigation which was to talk about mr personality and how his personality and in mitigation his p t s d led to this event rather than to emphasize the ties to the area of brotherhood and the folk nation  strategy is that jurors sitting in for dear me might then be keyed into that issue and wondering why they had been asked about racial motivation and they're about to get hit over the head with it right like openings and closings and throughout the trial so i mean is there really a downside there could be a downer going or that's exactly the strategic decision the trial counsel is making instead by choosing to ask about whether or not self defense would be something that jurors would consider or  if it was individual or in the presence of others i know there was an opportunity at least to approach the bench and asked to speak privately with the judge but i don't remember from the record don't second guess the ohio supreme court's decision that this was a reasonable strategy i also think that the attempts to avoid the prejudice prong of strickland fail the supreme court  turner means that the structural errors doesn't get around the fact that there needs to be a prejudice showing in this case and there is no prejudice demonstration in this case the board here that was conducted shows that we had jurors who didn't make any statements that would lead us to believe that they were racially biased and a number of them expressed reservations and doubts about even posting the death penalty as is discussed in response to one of the other assignments affair in this case is not a showing of prejudice or a showing of deficient performance the an effective assistance of counsel claim should be denied the ohio supreme court's determination to deny this on the merits was reasonable only because he only addressed that first point there's only one other point i wanted to raise in regards to the grand jury transcripts requests in his brief on page fifty three as attorneys know that the warden has the grand jury transcripts but the facts the warden does not have access to grand jury transcripts because they're not the prosecutors in this case the ohio attorney general's office has to go through the same hoops of making a particular a showing that which i take it has to do with with some type of prison medical records can you give us a little background on that in the sense that were those records available if a discovery request of some sort been made or were they only available if the if the state decided sue a sponsor you to produce them under brady they're actually available to the prisoner outside of the discovery context pursuant to ohio statue because they're his own record little arabic to yes right this claim has a number of procedural problems and addition to the merits problems it was first raised in a motion to amend the district court granted it tentative lee and allowed those this portion of the case to be returned to state court but didn't stay the rest of the proceedings the state courts dismissed these claims as untimely when they were raised before that court saying that sturgis could have obtained his records personally to fifty one twenty point twenty one and he could have done so sooner than he did and so therefore the claims were untimely under state law so when he returned to the district court the district court revisited its decision to allow the motion to amend and found that mr sturgis had not exercise due diligence under rule fifteen c and mailed the felix and denied the claim as untimely and made us an alternative finding that the claim was procedurally defaulted because it was completed or even during his trial he could've gotten them he talks about the material that that's found in these records and his unsworn statement and disclose the contents of them to his expert witness although he didn't provide him with records so that claim is multiple accounts to him and mr claims that are a scar on his neck he also talked about having witnessed his grandfather's suicide and some other attacks in the prison system  records second state's second post conviction or those carried forward into anything in the federal court record or would we have to go to state records i believe they should be part of the federal appendix and i apologize they don't know that answer we can look thank you bar in and of itself i think that's clear in this court's precedent including in hillview mitchell the fifteen c only allows relation back its records are presented within one year which they could have been attained with due diligence because he didn't exercise due diligence in obtaining them the denial of the motion to amend under will fifteen was appropriate and so is the procedur i hope that answers any questions about the second claim that you may have i know that he wanted to resurface part of the time to address that and thank you for ing it to my attention if there are no further questions  thank you judge box in response to your question there was individual conducted on death qualification in this case so any idea that maybe the entire jury pool would have been tainted by hearing this would not have occurred they did individual death qualification that's the normal process in ohio and that's what happened in this particular days as the process the attorney general points out there's no evidence of strategy in this case there's nothing that indicates that the lawyers made any conscious decision about what to ask during one tear and what to do turning briefly to the brady issue the prosecutors in this case and the attorney general in this case if you like consistently on the fact that it was perfectly reasonable for the doubt as to rely on the prosecutors to comply with their obligations under brady and disclose the evidence there was no ineffective assistance of counsel as the trial court in this case determined because they didn't do an investigation outside of relying on the prosecutor turning over these files and we know that these files were in the prosecutor's possession during the trial because the prosecutor repeatedly referred to them but never disclosed them to the dow days and the issue under neighbor who was the prosecutor cross examin ira and telling the jury that dr irish testimony was invalid because there was no documentary evidence that the attack actually occurred beyond mr stone saying it happened and what's revealed in the d r c records that were finally dislodged from the state of ohio was that mr sturgis had a five to six inch cut across his throat that the gaping wound was four inches wide that he was covered in blood as he came off of the yard and didn't wait for a stretcher so that he could get to the infirmary and then he was immediately evacuated to the local hospital for treatment yes dr i'm or should have had that record and he should have been able to tell the prosecutor no your characterization of this is just a scratch is wrong scar visible it is i don't know whether it was a trial you know how effective should we assume this attempted impeachment really was when the man is sitting there with a large scar we don't know whether the jury could see it if mr sturgis with my client at trial as i'm sure you would all have done he would not have been dressed in prison garb he would have had a coat and tie on so whether he has a cut across his throat may not have been visible is it your burden to show that it was not visible know it whether it's visible or not isn't the issue well it might be if he's sitting there with an enormous scar across his neck it it's rather corroborates it certainly is nothing in the record that they pointed it out to the jury to show certainly would have known i mean doesn't that sort of make it in the part of your it ineffective assistance claim not part of the nap you claim because if they had wanted to engage on this issue and again i can think of some reasons why they might not want to but if they wanted to engage on it they said they could have gotten the records they could have they could have just looked like just a scratch to you that might be pretty effective if that was what the situation was and they did but again and again if you're trying to say this guy isn't so bad all the time is he wants some of the time maybe you don't want to show that he's the kind of god would get a six inch cut it is neck except they put that evidence on and the issue in this case they put the defense team the defense we put on the evidence of the attack and the entire foundation of dr ayers diagnosis of post traumatic stress where the assaults that occurred in prison this wasn't an allegation by the prosecutors saying that the attack never happened what the prosecutor was doing in this case was  person who testified that did not have a bias which is exactly what the prosecutor said he relied on johnstone jets and his sisters to tell you this information and all dr i am or had to say is no i reviewed the d or c records that were in the prosecutor's possession at the time and they turn in general stands appearance as it was not in effect to for them to rely on the prosecutor to do discovery and that mr sturgis is somehow not diligent for trusting the prosecutor to comply with their constitution as a geisha things that are in records that if you go looking for them there might or might not be something there presumably they knew at trial that this was what stow jets was sane and could be corroborated from those records get so they chose not to get them and they chose to do nothing in this case except rely on the prosecutor for discovery but that was their strategy this is the brady claim correct on ineffective assistance crypt because the prosecutor should have turned it over ok but i mean you know why is it the prosecutor's fault they just didn't ask they did if i may or and they did file the discovery request in the prosecutor's responses don't worry we will liberally comply with brady and then they did it and just like in banks versus they  followed discovery request was for what for anything needed general discovery requests unlike in banks versus draggy where the prosecutors hid evidence all the way through the case until a b s and then did the exact same thing stand up and say oh it's his fault for not catching  lying earlier that's exactly the situation we have to really reason to think the case comes out differently if if the defense was able to also to the testimony this expert with  documents really if the if the issue of post traumatic stress is connected to this level of an attack there's a reasonable probability that the jury gives a lot i don't know i mean you say that i'm not really feeling it i mean when you look at this case and the totality of it i just it's not self evident you know if i make the existence of post traumatic stress is one of the most powerful mitigating factors there is it's becoming more and more powerful every day because of what's happening when guys come back from the war suffering from p t s d we know what that means in this jury would have known what that meant ok thank you thank you counsel him m