visited us home countless times each year often as not as often as twice a week as social worker author loss then provided the b s point with graphic descriptions of mr paice child thing including that quote beat the devil out of high end his th impling that mr pipes parents and older siblings consumed homemade whisky daily and engaged in constant violence what mr lawson called raising sand sometimes mr lawson wouldn't even get to the front door of the family home in broad daylight before a drunken brawl involving multiple you know we members would spill into the yard and testify that the pipe family was desperately or he described in vivid terms the deplorable condition of their home a tiny shack without heat or plumbing crowded with filth and rotting food and big children this evidence from mr abbas and his m controvert yet the jury never nor did the jury hear from the sheriff's deputy responded to the constant domestic violence calls of the high home and he was tasked with finding the smaller check by children who had hidden in the surrounding woods when the fighting broke out is that testimony to  rted the jury did not know that mr pipes school records show that he missed school because they were not enough shoes to go around the jury did not hear that as a newborn mr pie was inadequately nourished and left alone for ten to twelve hours each day with his ten year old civil ing that evidence to you in the record completely young entrepreneurs and the jury did not know the criteria of experts including the government's own experts agree that well you've got two to two claims that you devote most of your attention to your two hundred and forty five page birth d the other intellectual disability d claim when you get around will oh i'm happy to address the court's question in that regard and talk about what beyond reasonable determinations about where that web behavior is or two on the one hand rejects testimony like that from dr swanson and on the have competing testimonies from two experts about one prong of the intellectual disability diagnostic criteria right those two we've all standards together put a pretty substantial obstacle in between and intellectually disabled federal havey it's just and really and so we have knowledge that but those obstacles don't i don't even know that's a choice that i know mission i was referencing earlier and that's the failure to get a mental health evaluation and i want to set that aside because i do want to turn back to that because if you support does not address that and mr garber is in fact surprised findings of fact are unreasonable but i think it's possible the trial counsel was deficient even under the facts as found by the state maybe a score that that that was unreasonable under strickland and  so it but it seems to me that you're not really a but it seems to me that your claim has really two aspects one is a failure to investigate and then the nd part is a failure to present the mitigating evidence that they may have found so how do we evaluate those i did with respect to those people is slightly different and i think the response to your question differs depend on which aspect we're talking so if i look at the record it seems like the state hevia score really only address the presentation of some evidence of poverty is that right so it's respect everything else it would be a failure to investigate claims that right so your position right with this the navy is court says you know they allow you to overcome at that deference with respect to present prejudice on the strickland claims so we get again i guess i want to kind of parse out different pieces  for exactly the same reasons that they fail to support and that reasoning has been rejected by the supreme court it's been rejected by this court in cases like daniel if you have daniel be commissioner it says you know it's finding the perspective prejudiced it gets us to believe and just the mental health you know there are several other and reasonable findings with respect to the court just sort drinking while she was pregnant one of the things he testified to in his several pages about the david testimony about this family is that he he observed mrs pike drunk while she was pregnant even pitch to her drinking continued e also you know have an oldie base prejudice implications and in any event i don't it seems like to me the judge was mistaken or on what federal law requires what supreme court  there there ought to be a thorough evaluation of all types of the mitigation evidence so i don't know if i'm going off on the wrong track you are not judge martin i do think that there are criticisms of where i was headed there are criticisms of only a small percentage of all the affidavits those criticisms are that themselves flimsy and i can address each of those criticisms but most of those criticisms attend to and you have three all of the family member affidavits here and what you would have left is the testimony of multiple teachers including one teacher who did not testify happened even to testify polite in fact he is or you would have the testimony of the sheriff's deputy who is responsible for responding to all of the domestic violence of the house things surprised that you would have the testimony of the woman who donna potts the store the country store at the end of their little road and who testified about what she saw on observe the family and what it knew since they were in the community you would have the testimony of again mr lawson you would have the testimony of neighbors of lester henderson all of these people testify not only consistent with one another but consistent with the contemporaneous records in the case the facts records this or records you know the idea that you can cast aside all of these non family member witnesses who have no possible motive or incentive to shave their testimony and to use testimony is consistent with one another inconsistent records to set aside that and say that does not establish prejudice is is absolutely an d court that we d were required to give their st well you can get around them that's not what the record reflects but let's just take those at face value let's say his family was not cooperating and you know why not have all the other members of the community who know what's happening in this house you know why not stop at the little countries or at the end of the tides and ask those witnesses why not contact his teachers this is a really small town a small school district a small school for interviews she and they say she'll make a good witness why not have a more fulsome interview with her why not ask for any you know why not when one family members as we grew up without heat and running water to say tell me more than you know this is not an uncooperative family you know and maybe this mental let me let me ask you i want to ask you a question for your time runs out the district court effectively skipped over deficient put performance and went right to prejudice as the court is entitle to do and found that the state that the state pays course president's determination was not unreasonable if we were to conclude that that is wrong in other words that the determination of prejudice if you and on the deficiency promenade do want to circle back there are you know three things that every reasonable counsel in this case should have observed and known points to the need for mental health evaluation in this case three things that make it so that no reasonable way or can go to trial with those three things that the department of corrections records the school records and trial three consuls own observations that mr pike could not read or write  they tried all these couple cases against each other they both knew ahead of time what the others closing arguments were going to be they predicted them to the jury with absolute certainty knew that mr price future dangerousness knew that his dangerous referenced a serious mental health symptom inability to cope with reality of flat out serious emotional withdrawal reports hearing voices the department of corrections records over and over again note mental health symptomology and at one point they even say i could not get the virtual background to work it kept cutting off half of my head so sorry about that ok so i would like to take that intellectual disability claim st and as that was st in our brief and briefly talk about that as judge wilson pointed out the state has court clearly made mirrors determination on the intellectual disability claim and as this court has recently stated in reeves that's a factual determination and if as the georgia supreme court has says it is procedurally defaulted but you look at it under pas prejudice and the miscarriage of justice standard and the beginning of the court's evaluation it noted that and then under that standard it went to the merits of that particular issue and at the end it said i find that you have shown prejudiced overcome the default of this claim so you do have merits analysis they are albeit under prejudice or miscarriage of justice is a factual finding you had to find there was no support in the record for this factual findings and even if you did applied to never reviewed the factual finding still get deference even without the aid d p a this grandmother think i agree with you with respect to the intellectual disability claim because i find it hard to see how the state court findings could be unreasonable given that this was basically a battle of the experts but what about dispense point the end of election disability evidence should have been used as mitigation in the penalty phase sure so i'll move on to that in effect insistence clane i think the easiest way to deal with this client is under prejudice i don't disagree with the c b s court or the dish or court determination regarding deficiency but there is a lot i understand there's a lot of contradictory evidence there and i think that's a lot of what this case comes down to when you look at the full record it's there's evidence on once that evidence on the other side and some of it goes together and some of it doesn't looking at the prejudice analysis here you have is that he is court has gone through all of the particular information and i don't think that and the evidence i don't think that the state hey b s court completely discounted  the affidavits that the court the course simply said accordingly after after with you the affidavit evidence and it pointed out some problems with the affidavit evidence which under also georgia law they're required city they're required to go through the affidavits and see if they are credible the court says this court has reviewed tissues affidavit evidence with caution including the affidavit evidence alleging abuse and deprivation of addition or where affidavit testimony is extensively relied upon it just says it reviewed it with caution which is appropriate scram i want to just go on to the next sentence there i mean the court seemed to think that the there had to be a connection between the impoverished background and the the reason for the crime and that's not what mitigation evidence is so that's a mistake if i mean that's contrary to porter and i don't think i was sorry i do not think that is contrary to any supreme court precedent and do you think that you can look at the a link in between the mitigating evidence they're presenting and the crime because that's what it's a taste i'm not saying that you can't i'm so young but that's not the only evaluation you give to those kinds of materials and that's it and it seemed to me that the court thought it did i didn't read it that way and i just see that that's one of the reasons why the court found that the affidavit evidence wasn't particularly mitigating that's n was actually that she was not kidnapped that she came willingly and he testified that she willingly offered sex for drugs so he and he did not put it in terms of a gang rape i would obviously put it in those terms but he from what i remembered he stated that he had sex with her and exchange for drugs and the and he didn't know if the other two had sex with her as well but w phase i'm not aware of any supreme court precedent that requires a mitigation expert be hired also i think it has to do with what's low what's done in that community and there isn't any testimony or evidence in this particular case showing that a mitigation sure and again there is mitigating evidence but for almost every piece of the mitigating evidence here you have aggravating evidence for example when you're talking about the the fact that he says that he was abused by his father all the affidavit evidence you have mr prout actually telling dr king he was not physically or sexually abused as a child so you have contradictory evidence there regarding the low i q i agree that could be mitigating evidence absolutely but in this particular case you have the evidence pointing to petitioner as the leader of the crime and you have him planing and ethnic evidence in support of the planning is overwhelming you have the ski mask you had kicking in the door you have them wiping down their fingerprints not only at the motel but also in the car and so even end and also you have the jury listening to him testify during the guilt phase for pretty link the amount of time so i understand that's mitigating and we're not we're not arguing that and it's like that is not mitigating we're just saying when you look at the talent of the circumstances here it doesn't that aggravating evidence outweighs the mitigating evidence back to judge martin's question about the about the connection between the crime and the mitigating evidence of his childhood and background it seems to me that could be an unreasonable finding by the state  weren't connected because here you have mitigating evidence jews didn't state hey b s about abuse that mr price suffered as a result result of domestic violence and there was a question of parentage just like there was in this crime so how can you even say that they're but he did he lashed out at his ex girlfriend and as this court has stated for example in the us and in her case where she alleged that she was sexually abused and biggs of that nature and and  said that your crime was the murder of your husband it wasn't you know you didn't go after anybody else so i think i think they are it's not and reasonable to say that someone is twenty eight years old years removed from their their their child and when they kidnapped their ex girlfriends for and there were several reasons why they said they kidnapped her one could have been because of the parents of the child the other was because her boyfriend that she lived with had allegedly won the lottery or won a settlement a settlement and they wanted the money and there was evidence that they had thrown some of their belongings out and he takes this lady and he allows her to be gang raped and then he puts her out on the dirt road and he shoots and leaves are to lead to death i'm not sure exactly what your wife and reasonable to say that there isn't a real causal link between an impoverished childhood and this particular crime wasn't the point when we look at the supreme court cases that it's up to the jury to make these determinations and that the th should have been put before the jury in the porter case from the supreme court mr porter was fifty four years old and yet the court said that there was mitigating evidence from his childhood that could have impact at the jurors evaluation of his culpability i think that the point here and the court the point that the court makes in st land and in many other cases is that you have to weigh the evidence you have to look at aggravating evidence and the mitigating rating you look at all mitigating you don't have a reason probability of a different outcome than you have to us from that station and again i'll go back and there's more contradictory evidence for example if they put in evidence that he had organic alleged organic brain disorder i'm sorry we're getting brain damaged and our frontal lobe and then you have dr king's testimony rejecting that outright saying i don't i don't see that also i've got dr king diagnosed him with a personality disorder with anti social personality traits which is to be very aggravating so on one side you have his mitigating evidence and on the other side you have dr king's aggravat it take advantage of the town with you to let you know my concerns so i actually do have some questions about the performance prong of the ineffective assistance claim talk to me about those school records by my count you know the the rick the the records were requested and many but the yeah that's what's great actually was beating me and that i would like to say regarding the deficiency prong when you look at this record you do not have institutional records for mr paget sharing that he had intellectual disability or any other mental she had a child at age thirteen and that's that's all that effects records that i see in there i do not see me being showing that they were extremely impoverished that big kids were neglected that the children did not have enough from a teacher saying he was in taiwan classes which is clearly shown in the school records but that teacher also said that special ed was a different a different from school it was different than the title once had a one was to help with certain issues that you have and you also did have been diagnosed as intellectually disabled throughout school he went to prison at a relatively young age they looked at him they didn't see other than he seemed pretty upset about being in prison and  records obtained and you know i think mr benton makes a pretty compelling argument about you know these two border they've been trying these death cases against each other and they knew what the other was going to argue and so it does seem like a performance issue to me that you know mr paas lawyer didn't get the department of corrections records and didn't have the benefit of the testimony that we ultimately  to learn from the prison guards about how you know mr powell was actually helpful in the presence of things yes but that again is a piece of mitigating evidence that has contrary aggravating evidence because you have his prison records w thing i wanted to ask you about like it seemed pretty clear to me that there was no preparation of the mitigation witness for the witnesses before they got on the stand and that that and that's kind of backed up by the  from the multi county public defender the talked about how mr yarbrough acknowledged that you know they have made a mistake by not talking to mr puzzled a sister before putting her billing records which specifically states respect this many hours comparing them for testimony at trial now again i don't have anything in the files here showing other than the billing records that they prepared for trial that you do have that and you know the door was kicked in at his home all this you are at least it was missing and you know was his belongings were thrown out in the yard and that all of the physical evidence matched up with what mr pickett said some not sure exactly and if you look at the testimony during at trowed hearing the medical examiner because she tested positive for cocaine he mr mosteller attempted to get that information in at trial regarding her will refuse to let him because he had their victims here or in evidence so he did repeatedly try to get that information require the jury so you wouldn't have any kind of conflict there you don't have it i mean he was clearly you know adamantly representing his client's rights with his version of the story before the jury that's a crime let me try again on the department of corrections records there's a lot of moving parts  so my question was about you know if mr mosteller knew that the argument was going to be oh he's going to kill a prison guard then why didn't he i mean as to his performance in the penalty phase he's not a problem that he didn't even try to get the department of corrections records that could have rebutted that well st of all again you know we're getting trial counsel's record here there's no index to the record there's no testimony from mr mosteller misuari saying you know x y and z was in this file we did this week we don't know it so in some respects you're not saying you think they were in the file are you i don't know i mean the record is essentially silent on that and less and less i have missed it in those department of correction piles where it shows that mr mosteller didn't get on but even assuming even assuming here that so you don't have to worry about the what you know the chips kind of fall where they fall right or right it any good going back to the radius now says here you know when you look at what the state he is court did it with you the evidence i realize that  strickland that there was no reason probability of a different outcome and when you look at this case in total you have a very aggravated crime ring and although you have evidence here of poverty and possible physical  put it all together and i don't see how you can say no reasonable jurist would find that the aggravating evidence out did not outweigh the mitigating evidence in this particular case brief points with regard to prejudice me i see context i think there is a little bit of confusion sound around what the these various records do the school records effects records and corrections records and it is not our position that those records alone would have to prejudice or even a trial counsel necessarily have to use if you introduce those records what those records do is put counsel i notice of a need to investigate and they need to get a mental health evaluation the school records don't show conclusively that he they tell me if you're if i'm thinking about this three years ago i mean to me it just shows a lack of preparation so it goes to councils performance i mean you know you ask for the school records you know will look after the trials already started and they do never get the department of corrections records even though you know what arguments coming and closing arguments so that's that's the way i'm looking at it as  it exactly if he had gotten the school records and they had shown an i q in the intellectually disabled range in the middle of trial what's trial counsel going to do that he's already conducted why dear he can't even white hear the jurors about their experiences with the whole actually disabled persons the trial is already underway but did the school records are one factor among several d that show that both council should have performed investigation and taken another step a child where they did not  hiya he had a duty to go and investigate what he knew would be the state's evidence in aggravation you know what whatever that is it doesn't mean that the aggravating evidence necessarily would have had something to do with what he discovers as you know in and that's the case here the deals the records you know whether they should have been introduced or not whether what they do with respect to the prejudiced pronk on the testimony of prison guards who say that he was a treatment that combines both anti depressant and anti psychotic action in a single run especially as they're spent is there any evidence in the record at all about why no mental health examination was sought or performed well in evaluating that aggravating evidence you have to take into consideration what was produced in the hevia support and that evidence shows that the aggravation isn't as substantial as the sentencing jury was led to believe you know we have the testimony from linda lyons who is the victim's dear friend or neighbor who says both to the police at the time of the initial investigation and in an affidavit given behavior or no she left the her own accord i watched her walk away on her own steam her use my phone to all someone asked to be picked on the motel room you know you have to take into that account back consider that evidence the evidence of the victim's drug use which tribal council did not have admitted he that the victim was there against her will so you know that would be to be aggravating pieces have to do with how she got there and whether she you know whether her actions are voluntary or whether