counsel we are here today to talk about what mr lambright was able to prove that the evidence for a hearing not about what we still don't know or what mr lambright did not prove after hearing mr lambright proved that his trial and what you're going do right now is tell us what he is staff at least in the way mitigating evidence at the time of the federal district court evidence three here is that correct yes your honor and then you're going to not only did his counsel fail to conduct a constitutionally adequate medication investigation and failed to present readily available evidence in mitigation he chose instead i'm reasonably rely on the court order pre sentence report to provide any mitigating  post traumatic stress disorder he discussed mr lambright allegation of methamphetamine abuse and i believe spent a very short amount of time on the allegations concerning the sterling rights childhood and that was all that it was something that had affected the crime itself it wasn't even discussed in the district court order for example i have numerous examples of issues that were ignored by the district court for example regarding an adequate investigation but i think on the other hand what was before the sentencing court was not any information that he had been approved by his mother correct that information and he did not contend that at that time but i'm not sure if anyone ever asked him your honor and you know abused is not a subjective standard of abuse the something that happens or doesn't happen it's really not up to mr lambright to decide if what happened to him was abused he can still be damaged by the very extreme its entire first year of school we also know from his sister that mr lambright suffered a lot from this punishment and she volunteered that she thought he would have done better as a child than a young man if he'd been treated differently by his mother when he was because he was a four they had no and he lived for a time in a house with no electricity running water and or plumbing later they lived for some time in a house that quote had terrible rat and holes in the wall and ceiling had to be covered up by cardboard they lived in mexico for a few that evidence concerning his mitigation claims if you will was not presented to the state sentencing core  and a lot of evidence exists it be your argument i guess that there were mitigating factors that should have been considered by the district court somewhere in your argument and i'd like you to do is tell drugs in his life that he had not had an ideal childhood several other comments about his family moving from place to place very frequently when he was a child few other lawyer filed what was called a memorandum of mitigating circumstances well that was a list of things like  those are all mainly legal statements yes not health facts were offered a very few i think it contained an allegation saying apparently that had an honorable discharge from the military with no record to support that and the  awaiting trial he did misbehave exactly your honor and i think that's a very important point and i think another point i would like to make that i think is very important about the pre sentence report itself that if you look at that document as a whole and it's not very long it's maybe ten eleven pages long it would certainly be unbeatable for anyone to look at that document and believe that it was something presented in mitigation to the court the document twice in the document it quotes various individuals calling for mr lambright to receive the death penalty it unsub completely to this day unsubstantiated and reported allegation that mr lambright sexually abused his stepdaughter which was never reported to anyone was never verified in any way and also at the end of the document which i think is perhaps the most telling thing here at the end of the document that probation officer calls for the court to find two aggravating circumstances even though the trackwork did eventually only find one and also says that based on the evidence in this presents report the court should things clearly that affects the question of deficient performance yes but as to the question of prejudice i suppose you could have every probation report that gave the court all of the information it needed and then your issue would be are you prejudice because the lawyer didn't you know look for more or didn't you argue the medication but do you feel it the was presented there is a no means indicative of the rest of the significant mitigating evidence that was out there that counsel could have found a percentage of the court and we know that the trial court did not love at the pre sentence report as containing mitigating information because if you read the special verdict the only mitigating factor that gets any real treatment which i would even say is a lot if you sentences in the sports the truck what special verdict is the fact that heat mr lambright had behaved well while in jail awaiting trial and sentencing here's what happened it wasn't presented in terms of a picture of mr lambert to explain who he was as a person it was a bare unsubstantiated allegation and contained in a document that was full of other damaging and and information urging  be given the death penalty it was in no way presented to the court in a way that will allow it to see why it was mitigating there was no explanation given of why it was something that would help explain his behavior explain to mr lambright was was the extent of lambert's mother who was a prescription drug addict had actually started medicating mr lambright with description drugs and he was going to six or seven so the fact that after that after he had gone through various events in his life that he would then undertake medicating himself they were listed in the pre sentence report and i think they were also listed in the court clinic evaluation but with no mention of the circumstances of his life at the time he tried to commit suicide no discussion of what happened how it came about and nothing presented simply two lines about the fact that he tried to commit suicide what about the hospitalization hallucination was being said about your honor i don't believe that it was necessarily presented to the sentencing court in terms of the circumstances in  which he went to the mental hospital i think that there was an allegation that he'd been hospitalized for psychiatric reasons but again no records were presented not none of this was in any way explained and that was a particularly compelling story i think your honor if you look at it mean we have again corroborated in uncontroverted evidence in this or lambright was found cowering outside his sister and brother in law's door in the middle of the night screaming about seeing his parents burn and as a result was taken to a mental hospital where he was kept  that's true i think i mean i certainly agree that this is fast in this case are terrible but in any case murder in the facts of a murder are always terrible and i think that certainly there's a scale as to how bad they might be but no matter how terrible the facts realizing the defendant's life and letting the court make the constitutionally required individual licensing determination is key the court can know that the defendant is receiving the sentence way that juries were instructed i'm not positive if the jury was given an instruction if the judge followed that at the time and started confusing to think if the judge should follow that at the time of this but that certainly it was the law in arizona was to look for a we also have corroborated evidence that mr lambright acted differently when he returned from vietnam that he was irritable withdrawn restless jumpy he had trouble sleeping he was agitated these are all behaviors that we know were different from how and how he acted before he entered the military we know he had experienced nightmares about vietnam including that his ex wife testified where he would be if served hollering yelling get down get down and grabbing her and telling her to get down because of the economy hiding behind the bushes he attempted suicide twice three day stay in a mental hospital and to this day he still has nightmares depression and difficulty sleeping on top of that was something that was never discussed at the evidence or at th anyway but even though it might not be classified as pows from matter stress syndrome if the circumstances actually exist whether they were caused by vietnam or not might be relevant to a certain extent the question is well what was his mental condition not necessarily whether he had post traumatic stress exact thing that's very important point your honor i think that even in respondents expert dr lang in her report she says that she knows that there are numerous traumatic events that's mr lambright went through and the question she really looked at in her report if you read her part carefully was whether or not a vietnam related post traumatic stress disorder flashback or some sort of event was what caused the crime she spent some time saying there's no allegation that he thought he was fighting the you thought that you know if anything related to the it now is happening at the time of the crime that's simply not the question here the question here is whether this is relevant mitigation evidence and whether or not it was something that caused the crime that 's improperly limiting the evidence before the sentencing court so it's so we're going to stand at this report and say well this doesn't matter because it didn't cause the crime that leaves out all the supporting evidence that that was here and i think it's you have to be i question these do you have to be a combat infantry man in order to suffer the post traumatic syndrome no your honor a person can be a rape victim suffer from  your position regarding the girl because we're going to get a lot of pictures coming then as a result of iraq i want to know whether or not it's confined to infantry men i believe i answered no it is not your honor or no rape and what about who else seeing is bloody ripped in half by a machine gun killing a couple of the is gone or even being in gauged in any combat activity himself directly while he was in vietnam and that because he had not been engaged in that kind of activity in the district court believed his story about it in the district courts as well that you are not suffering from post traumatic stress disorder and i get that right that time i do so judge the case now but just because he wasn't suffering from post traumatic stress disorder because a story as to what he had done in vietnam was not believable what how does that leave the other mental deficiencies if you will defect or mental aspects of his little evidence even at the sentencing during that period i think it was who said that he had and i think a social personality disorder or something which is a mitigating factor in crime conversion or behavior in prison how could those things affect the crime or be the cause of the crime but we know that those things are proper to consider in mitigation properly considered in mitigation have a mental health problem you have a miserable childhood where you were beaten by your mother you might view a person in that situation with some more sympathy than a person who had had all the benefits in life and  have had that happy experience he was just a sadist you might look at the person differently that's why it's mitigation and it may not be persuasive medication but it is mitigation the judge seemed to think it was not mitigating unless it was the cause of the crime that unless the drug used the influence and that was why he committed the crime that's a totally different argument from the fact that it's mitigating because this was his life that you look at the person's life and he way that and say this person would be treated you know with some leniency or should we not execute him so we just keep him in jail for life because we've considered his life story and i guess i just respectfully disagree with the court's characterization of what the district court did i believe in the order that the district court did consider it but didn't find it particularly weighty which is factors to present to the judge and he also relied on the pre sentence report and the psychological report which were also before the judge and i know mr garcia said that there was very little information it's my recollection at least and i believe the present suicide attempts the information is in there that he drove his car into a tree he overdosed that information is in there and it was before the sense in court and again he had prison guard who gave a favorable review of his behavior in jail that was the only one i see that is true now do you is it the is it the policy of the state that one attorney does that that's that's permissible or not permissible case under strickland you have to look at each of the facts in each case what the defense attorney is dealing with what his client is telling him how his client is acting on it is something to look at under strickland you have to look at the actions in the context of the time of the case and the facts of the case and that's under strickland and it's up to the court to determine if that's reasonable or not obviously under strickland but then the court also has to look at the pressures from under stric capitol state to not make any argument about these particular items the mental problem with the drug problem the family problem to not mention those items or put on any evidence regarding those certainly not conceding that it was an accurate representation but i you know i don't have a problem with focusing on prejudice because there just isn't any prejudice here because the court used to look at the information that was available at the time and any additional information that came to o that's not a big leap right there and i don't know if that's going to be the kind of thing considering their vision in this case it would have made a difference i guess i would just like that the court to focus on the fact that mr garcia said that mr lambright was somehow prevented from presenting other mitigation the only thing i can see in the record that he was not allowed to present was some pictures of him as a child other than that he was allowed to present what he found to be mitigating and the good that you know i go thank you that's a good argument that you've made in your to be complimented on thank you judge appreciate lambright is not required to prove that the evidence he presented at the evidence you're hearing that was never shown to the district court would have made a difference in the outcome the question here is whether or not it is something that undermines confidence in the outcome of the sentencing and i think many things that were not present at the sentencing hearing including the significant evidence of childhood physical abuse and neglect the circumstances leading to his history of drug use and abuse including the fact that his mother was the one who originally started giving him prescription medication to control his behavior through how his drug abuse itself developed and the reasons why it developed the fact that mr lambright has a family history of alcoholism and drug abuse his mental health issues including his family history of severe depression his grandmother committed suicide his own history of severe depression his multiple diagnoses of depressive disorder his  of those things there those are all things that were proven at the evidence you're hearing that were never presented to the sentencing court in this case and because all of this evidence exists and sense of what was never given the op or two he considered it and what kind of the fact it had