good afternoon my name is kelly henry and it is my privilege along with my colleagues j martin david fletcher to represent john hall in the arguments before the court this afternoon i'd like to reserve five minutes provide your honors in short time that we have together this afternoon i'd like to focus my argument on the claim referencing the suppression of the psychological evidence regarding the witness informant in the case kristen as i believe a ruling in mr hal favor will resolve all of the other issues in the case and that issue i believe is plainly meritorious in order to evaluate that claim i think it is important for us to look back at the chronology of the case first in terms of the specific acts that were made and specific representations that were made on behalf of the prosecution with respect to disclosure and then we i think it's important for us to look at what was presented there was a specific motion filed for a scope atory evidence thereafter in june of one thousand nine hundred five the prosecuting attorney sent letters to defense counsel stating in reference to your request for discovery we have an open file policy i encourage you to take advantage of it later that here in november of one thousand nine hundred five the prosecution affirmatively represented on the record to the court that all evidence ha been turned over and that they had fully complied with their discovery obligations after that time there was a change of counsel the new counsel filed a motion requesting to adopt all previous motions filed and that was granted thus there was an affirmative request for discovery evidence including evidence of mental health evaluation evidence that would impeach the witnesses called on behalf of the state so this is not a situation here where we are suggesting that the government should have just divined an obligation there was in fact a specific request even though we know from kyle's and banks and cone that those specific requests really are required if we look now to the evidence of the trial i'd like to talk about the evidence of the trial when you remove kristen because the state had a total of six witnesses the first witness they called was the witness who responded to the scene and found the body of miss hall the second witness gentleman by the name of byrd who was a t b i agent is the individual who processed the crime scene and arrested mr hall his testimony was that upon arrest of mr hall he was incredibly remorseful and he was not impeached on that point remorse was important because the defense was that there was no man's right to first degree murder then these remaining other three witnesses were the juvenile witnesses the children it had been three years since they had witnessed what they had witnessed during which time they had been living with the mother and father of the victim they were children their memories were subject to being manipulated or just over time we know children's memories change the children do not provide evidence premeditation the state's informant he and he alone testified at trial that mr hall's purpose was to make the victim suffer that's important not only for the first phase of the case but it's important for the second phase of the case how are you really that evidence of premeditation such as your client cutting off the phone before he goes into the house and also the chairman observing certain behavior of statements he might have made during our creation that might have suggested premeditation thank you for that question your honor because i forgot to talk about the telephone cord and that's very important chris dothan at trial is the only person who talks about mr hall of legibly confessing to removing the telephone cord at the pole for the purpose of miss hall not being able to call the police tried to call the police but it wasn't working they said the phone wasn't working but the question your honor is whether or not the phone was pulled out by mr hall and if it was pulled out for the purpose of her not being able to call the police covered afterward and cut them a no sir no sir that the testimony of mr byrd in the record is that the phone was simply out at the poll and i don't know if i remember having evidence of premeditation but it seems like there's a lot of circumstantial evidence that's still there but all without doubt and they don't have proof that mr hall is the one who removes the phone well i mean is it is it a reasonable to assume he did if we were looking at th was using the wrong a valuation we have to look at it in terms of what brady and kyle's tell us which is do we have reason to have undermined confidence in the verdict animals remove foreign courts from the halt all the time telephone workers have removed phone cores all the time i have had the experience of having a phone that was plugged into the pole and i had to call the phone company and it had been a squirrel that had removed it anybody could have removed it if we want to undermine confidence in the outcome of the trial we have to rely on you say is critical and that brady violation of the mental health records were not disclosed by the prosecutor that's the argument right and that is the portion of the brady claim upon which this court granted a certificate of the ability at all mental health records of in the prosecutor's file we don't have any proof of that in the record your hon r so what he said you can look at everything in my file that wasn't there so there's no bright violation there you're brady violation if you say that he's responsible for the records that i understand is they say they provided access to everything else file but this just wasn't enough for you know what the reason for pointing that out to your honor is to point out the fact that the defense attorney had every reason to believe that the prosecutor had a brady violation is not giving defense counsel what you already have you say there's a duty of the prosecutor to go out and get things he does not have yes or that is a pretty violent yes or in that specifically comes from c called the prosecutor had credibility issues and we can see that from the letters that are in the record where the mr dutton is touting his services he sending a letter back saying you have a question about my credibility check out north carolina somebody else from the imputed knowledge yes i think i believe they go hand in hand what's your best authority that that is a duty that is his responsibility that he is responsible for anybody else in the state records i would with different sovereigns so you have situations where the state doesn't have to get federal evidence and the federal don't have to get state where we don't have to get something in an unrelated matter here it's a state prosecutor state records where the state is standing in the shoes of the mass and county sheriff's department they are for purposes of our case the madison county sheriff's department and i don't think that there's any argument to be made that a diligent prosecutor wouldn't be looking for those records particularly where you have an informant and i'm sorry let me back up i'm sorry i got to myself my second line of authority would be those cases where the courts have held that a united states attorney has an obligation to obtain b o p records because that i think that's a very similar an allergy because it's the same sovern but there's an even higher duty than that i would argue your honor because in trials versus whitley the court talks about how if the prosecution is on notice about a witness his credibility being an issue they have an affirmative obligation they were the only ones who could get these records and it just makes sense if you're calling an informant which are inherently reliable somebody who's in the prison he's looking for a deal first thing you're going to do is ask first president to make sure he was even at riverbend at the time that he says he was and as soon as you request those present records you're going to get the mental health records but it just seems a little bit removed from the typical brady claim that typical brady claim is the prosecutor have this evidence in his file or in is possession or where he is and he does not give it to the defense counsel rather than what you're arguing is that a good prosecutor would go out and find other things that could be there because and then turn him over well that doesn't seem like a normal brady violation that he could have discovered things that were there that he did not and therefore to radio it usually what i consider brady that it's not maybe they were in the mind but there are cases that deal with that and i wouldn't say that it's just a good prosecutor i would say the placed that burden on prosecutors take a look at the case thank you sir let me ask you something else one issue or potential issue in the case has to do with the  raised in the petition and usually on initial submission when there is an issue raised that trial counsel should have was on alert and should have moved for compazine hearing given his client's increasingly erratic and irrational question it was stale it was a drive by evaluation an empty magi and clearly not a thorough evaluation and certainly not one that had the benefit of observing mr hall and his behavior as it continued if mr hall were here he would say that those flags mean that this is not a legitimate court proceeding there's a make him incompetent to stand trial when he's incapable of rationally assisting his lawyer yes ma'am it does because what we know from the proof in the record is that this wasn't just a personality disorder this wasn't just a client who was being difficult or playing games we know from hard proof that his brain is structurally damaged which comes out functional damaged so even though he can copy jailhouse briefs and he can tape in some of the motions you see or actually you can actually see where it was taped together he can do all those things but his brain doesn't communicate from one side to the next he doesn't have frontal lobe abilities we know this from science we don't need anybody else and that science did not happen they didn't have anyone at trial looking at his brain and the way it worked but we did have a lawyer telling the judge he needed a continuance in august of one thousand nine hundred six because he was having trouble communicating with his client mr hall's behavior should have alerted a competent attorney that this was a client who would become emotionally flooded when you give him information when you challenge a delusion he becomes so emotionally flooded that he cannot engage in a rational conversation when you challenge his fixed delusions he cannot act in his best interest he certainly was not able to sit through his court proceeding part of the reasons why we have a protection against trying people who are not incompetent and it is because they don't present very well in front of a jury mr hall was an able to sit through the trial because his brain doesn't allow him to suppress his impulses and so he would speak out during the trial you can look at the transcript the second day of trial he's moving to have his lawyer removed because he says his lawyer made certain arguments in opening statement and then when you look at the opening statement which is a page and a half those arguments are not there he was delusional and he was not able to have a rational conversation with his lawyer not able to decide for example the probably should have taken the plea agreement that was offered to him where the victim's family didn't even want the death penalty but he couldn't reason and that's important rational assistance is what's the key here we're not saying he's mentally retarded but we are saying his brain doesn't work and his and lots of portions of his brain doesn't work he's got problems in the front of problems with the a middle of the amende is where you know we have anger and he's not able to module eight that and we have the problem in the corpus close and that means the two sides of the brain are communicating we know all of this from proof that is not controvert it but we didn't have that proof in state court and the state post conviction attorney failed to raise this claim and because they failed to raise this claim it wasn't adjudicated but they should have they should have been on notice just as trial counsel was on notice of the problems with mr hall's brain functioning and yes your honor we believe that it is important to remain and there's one factual error in the district court's opinion with dr girths report is the report that tells us that mr hall's brain structurally is damaged functionally as damaged and that the neuropsychological testing bears that out and when you compare the behaviors that you would expect to see from someone with the type of damage that mr hall has with the way mr hall actually behaves we see that in fact he was not competent but that proof wasn't presented in state court and it should have been and we believe that we would prevail if given an evidentiary hearing on the matter let me ask you this what it what information was available to mr holmes they were lateral proceedings  you would see his preserver ation on issues respecting the venue claim his dealings with mr hall we have in the record evidence from several lawyers who talk about the fact that mr hall is able to communicate with them every lawyer to a person says that mr hall becomes a rap emotionally flooded and unable to communicate with them so he's not able to understand his legal situation or make decisions in his best interest with his lawyers so his lawyers were left with a client who couldn't understand what they were doing and he couldn't help him the other evidence that they had your honor i think goes hand in glove with the proof regarding childhood trauma that dr berners original report dealt with dr bremner originally if you look at his report the two thousand and eight report is criticized for not addressing competency but that wasn't the referral question in the two thousand and eight report he updated that report in two thousand and thirteen but he incorporated all of his findings from two thousand and eight postcondition council was aware of the severe childhood trauma that mr hall experience that he witnessed his father beat his mother so badly that blood was pouring out of her ears and her nose he was a they were aware of all of that and it was competent counsel it was so for using the strickland standard in two thousand and four two thousand and five when post conviction counsel had this case it was the professional norm to know about how childhood trauma affects brain development but also the terri mahoney affidavit your honor i think has been somewhat taken out of norms are for attorneys in these two sorts of cases and she lays out in better detail than maybe i am here all of the reasons why the lawyers were on notice that they had a client who was not competent i would also direct  to the two thousand and thirteen report of dr bremner where he goes through in great detail the record and all of mr hall's behaviors that make it clear that he was unable to think rationally and all of that information was known to stay post conviction counsel or could have been known to state post conviction counsel if i could return very briefly because i have just one minute left and there's one thing i forgot to say that i think is really important with respect to the brady claim  with your indulgence and that is when we look at brady claims particularly word that and testimony goes straight to intent it's brady both as to the guilt innocence phase but also to the sentencing phase there  a single aggravating circumstance in this case and the state of tennessee requires intent there is a mens rea element to that aggravating circumstance and the again the only evidence of mr hall's mental state came from dutton that's the evidence that supports intent for the single aggravator in this case and so if his credibility was called into question we can conclude that there's a  reasonable probability that at least one juror would not have found that aggravator and if they had not the sentence under tennessee law would have been life and so the circumstantial evidence can go to be i think you can go to it your and i think the only reasonable inference is he is the one that disconnect the phone leaving the scene void in capture and if you are other things in there that i don't think there's disputed  that i mean you look at the circumstantial evidence it certainly looks like there's premeditation deliberation irrespective of the times that's not the way the case was argued and that's not the way the case is decided to all the reports and important fact is that that inside his intent was to make her suffer and that is the only person who says that and that is incredibly important he could be convicted of first degree murder whether he intended  suffer i mean as long as he planned it and deliberated right i mean this is intended to have or suffered an essential element in tennessee law no sir but that was the evidence that was presented in argued over and over and over again as evidence of rage and passion which would negate premeditation the girl's testimony to two of them testified that he told them that if they went for help he would kill their mother yes i mean that's damaging evidence i don't have an incident and it is not evidence of intent your honor no i don't believe it is i also would encourage the court to use the standard under calles and look at all the suppressed evidence which says that the girls gave a different story to the t b i before their trial these were juvenile witnesses the state needed and again it's not just efficiency the evidence test it's whether or not there's confidence undermined and again you need the intent to make her suffer to get the aggravator they do need that to get the aggravating circumstance i appreciate your honor is letting me take the extra time and we ask the court to remain on the case for have and share here thank you may please the court john blood so on the half of the respondent if i may i will address the competency issue first and then turn to the brady issue the record shows that after the petitioners arrest he was and a point after he was placed in the safe keeping with the department of correction at riverbend maximum security institute he was submitted to a competency evaluation by the mental to see mental health institute in t m h their forensic services division according to the letter return from that director in march of ninety five i believe they did outpatient review with him he was then in patient with the forensic services organization so to speak it was a letter signed by the director i'm not sure if the record that we have fleshes out further the process behind the letter before trial how do you respond to that or well your honor what what we have is we ultimately have the testimony from the two psychologists who testified at trial neither of whom indicated a problem with competency and i would say  and more that later happens the petitioners conduct at the counsel speaks to is the conduct he continued in throughout the course of the case and he filed a lengthy he was difficult for his his attorneys to deal with i think that's a fair statement and he filed lengthy proceeding pleadings but they were cogent i mean they were making arguments there were baseless arguments and a lot of ways but but but it didn't go to an issue of competency so what the district court concluded is that in that situation it was reasonable for trial counsel in this gap town leading up to trial to rely on their own experts had provided her own testimony about depression alcohol dependency in terms of explaining the conduct at the time there's nothing in there that would lead one to suspect there was even a question raised by those experts at the relying on what the law provided and their own experts that they have retained and are working with now be even even if there were a question of deficient performance there is no basis to find two to suspect that you have a substantial claim of prejudice in light of everything that has followed you had post conviction proceedings where there was specifically hotly contested among the experts regarding whether the  interrupt intermittent exposure i'm sorry intermittent explosive disorder apologized but in those proceedings the psychiatrist dr caruso that post conviction counsel retained specifically testified he was pumped he's competent the state's expert in her report state he is competent so by the time you get to post conviction you also have additional testimony that he was competent now i would say that would undermine any claim that post conviction counsel under martnez provided the future performance for the same reason trial counsel didn't via deficient performance you get to post conviction they're actually disputing mental health issues there's there's a dispute among the experts but not as to competence and to what extent can post conviction counsel rely on that i do i gree i think the issue here is there are substantial plain and also  which the report rejected is is there some indication that additional development is required and i would submit that it's not you had you also had the district court challenging the information that was before dr bremer counsel spoke to to some of that but you also had the issue of dr brenner apparently didn't even meet with the petition whereas it has to scuse me specifically as to the post conviction experts dr caruso and the state's expert dr stahl ford as well as dr all the college just that all met with him for out and so you have are waiting all of that together you don't have a substantial claim of either deficient performance or prejudice certainly it does not appear there's any way with further proceedings the petitioner could show ineffective assistance of post conviction counsel so under the martinez procedures there is no basis to do anything but affirm the district court's conclusion as to that point regarding for breaking i think it's helpful to to point out how this was litigated in the federal havey s proceedings  information regarding chris dunn and this was information from tedious c records they didn't address the issue of imputed knowledge whether t d o c was within the prosecution team the state address that in their an knowledge was essentially boils down to the prosecutor knew it was in prison the prosecutor knew that the prison has records the prosecutor could get those records and the prosecutor had a duty to get those records that was the argument in the district court and that is not correct of about a week before the district court rejected the client will that i will say what the district court concluded point of the specific prosecutor to kind of discover what is within the knowledge of the prosecution team but knowledge with another government entity outside the prosecution team there's a there's no duty to discover that there's a duty to disclose what you have not a duty to discover and if you have any authority yes yes or our point to the golf case which we cited in our society and i think both parties two thousand and ten published opinion from this court it actually was issued eight days before the district court's decision but it's not cited but the district court's decision is fully consistent with that golf was addressing whether there was a duty to disclose information about federal prosecution of a witness in a state matter of belief or have that correct and this court looked to specifically cases from other circuits look to one of the moon case from the eleventh circuit in terms of how do you determine who has that obligation and it comes down to those arms of the government agents of the government who are involved in the investigate labor whether the two were working together during the investigation of the defendant whether one was working under the direction or supervision of the other none of those characteristics apply the department of correction is not an arm of the t b i the madison county or the henderson county sheriff's departments of the district attorney general and there's no indication in this record that they played any role in the investigation that's the key issue under gough now this court look to go off in a pod off in sutton which was another tennessee capital  more like what we have here because it's all state of tennessee entities in sutton a forensic pathologist was a rebuttal witness for the state he was under investigation by agents with the tennessee department  here investigating mr sutton that made all of them part of the prosecution team and this court said no because there was no evidence or indication that those units were working in concert or in some way connected here it's even more removed than that you know talking about units within one agency in one single director it's a completely different agency that looking to the facts that we have there is no basis to find that t d o c was part of this prosecution team and that the knowledge within t d o see is imputed on to it and from our standpoint that's that result of the brady clip that answers the brady fine if there's not an obligation to a duty to discover that because they're outside the prosecution team then there's no basis of finding a correct i mean i don't dispute he was he and he was an important witness but but there was other evidence to show all of these factors and it would have been additional evidence well a lot of it relates to his work in other as an informant in other cases the jury was informed of that i mean that information there would have been more information about that but that was provided but and as has been touched on the evidence certainly the evidence of the killing is overwhelming but also evidence of intent in premeditation was there through the daughter's testimony his statement said he if they went for help he was going to kill her statement she would not live to graduate he comes into the house mediately knocks her over he assaulted her eighty three separate times she got away got out of the house he called up to her drug her to the pole strangled her and drowned her i mean what we're talking about is information in tediously records that might impeach his credibility but it's not going to touch it any of that evidence that's presented particularly by the daughters unless the court has further questions we asked the court to affirm the judgment the district for and here honors with respect to the competency claim and council's duty to investigate the supreme court case law is clear that counsels decisions about what they do or don't do is only as good as their investigation and the evidence is clear here that they did not do the investigation when we look at the two expert witnesses actually there was only one expert witness called at trial the other gentleman was treating psychologist from t d o c who said that mr hall was incredibly remorseful and that he was he prescribed him psychiatric medications but he was not a forensic expert dr zager is not a neuro psychologist she's a clinical psychologist she did not give any neuropsychological testing there was no brain imaging done at trial even though it was clearly called for and even though state post conviction counsel knew it was pursuing evidence of the behavior that he was saying they were going to called intermittent explosive disorder but in fact we know that the evidence that we're seeing from mr hall's broken brain is in fact exactly what was causing those behaviors that they want to call intermittent explosive disorder but caused him to have an inability to rationally assist and your honor when we talk about the m t m h i i and i will call the dr by evaluation because that is standard practice and anybody who practices in tennessee knows it it wasn't ultimate termination right they use a specific language your honor which is that he understands the charges against him and he's able to assist counsel but they don't use the word rational that doesn't appear anywhere in their decision and that's critical that's what we're is that they should've seen that behavior and they should look further in capital cases you're required to have a multi disciplinary team of mental health experts because each of them has their lane and none of the experts that were used in state court were in the lane that they need to be in order to understand mr hall's extreme dysfunctioning this is a man who lives every day in a world where he cannot rationally understand what is happening to him and why his lawyers are not able to get him out today because there's not venue or because the flag isn't the right flag he literally doesn't get it and he is tortured and he is remorseful so i would say that that would prove that we're at least intitled to a hearing every man and a hearing on these issues with respect to this court's unpublished opinion and such i would argue that that is completely an opposite to the matter that we have here today dr harlan was being investigated on a completely separate issue here we have in t d o c and i'm not saying that the court needs to have a broad opinion like the decision in the next circuit which is very broad narrowly under the circumstances of this case were t d o c did stand in the foot steps of the manson county sheriff's department there was an obligation for the prosecution to get those records particularly where there were serious credibility problems with dutton and if you could have cross examined him on the fact that he believed he was possessed by demons and the fact that he was convicted for providing faults evidence to the police that would have severely undermined his credibility and that undermines confidence in the outcome of this case where the defense was lack of intent and where when you look at the prosecutor's closing argument he always goes back to that and he doesn't go to anybody else and when you look at the decisions from the courts they rely on that and they don't always ascribe it to detonate but the testimony is from done and done alone i urge you to read the trial transcript it won't take you half a day because it's the shore's couple trial have ever seen and you will see that this is in fact a brady claim that is material and that was suppressed and we should at least be able to have an evidentiary hearing on the brake claim as well i think you for your time thank you counsel this will be submitted