good afternoon your honest can't rustle the attorney for the place before i get started i'd like to mention that there are a number of family members who don't know them from some distance to be here at the argument they're all seated at the in the front row here of this case has been briefed extensively and i know you're familiar with the briefs i thought that i would use my time here today to to highlight what i think are some very unusual aspects of this case i know that you get a lot of so called i see are ineffective assistance tuesday and i think there are some factors that make this case really unusual if not unique the first to say that we've got a defendant who was nineteen years old at the time of the fences with no prior felonies and has been sentenced to life without parole secondly we have only one issue in the case because the shooting was admitted and so the only issue that's a live issue at trial is whether there was the intent to kill that's required for first degree murder and for the special circumstance thirdly which i find very unusual is that rather than the record demonstrating a tactical or strategic reason for counsel to have failed to call an expert you have the office and here you have the record showing that counsel actually moved to continue the case for the express purpose of getting time to develop expert testimony in the opposite of a tactical  me on this i think we do a lot of cases and i could be misremembering the facts or mixing up your case with another i thought what happened was counsel didn't consult an expert he got a report from a psychologist and then he was deciding what to do with it and whether to put it on and he mentioned to the judge just that it was a double edged sword which suggested that it was a considered judgment about which the because the psychologist report had some really harmful as things in it that's not that's not what's in the record i suppose you could speculate about that but here's what's in the record i thought was on the record with the double edged sword no  no the only the only reason that counsel gives for counsel wants this continuance he's got this report in his hands and he wants a continuance for two purposes number one he wants to keep wants to work more with whatever he's got in this remember when i did criminal defense sometimes the clients would say well the reason i did it is i was drunk or i was high and i would think she the jury is just going to hate you worse well you've got this instruction now it's celtic three point three two we s briefs and it's a very specific instruction that says that you can you can introduce evidence of a mental disorder or defect for the express purpose of negating intent and and what's what's interesting about that instruction is that you can't get it without expert testimony that the cases are quite clear you're not supposed to consumate them for me in the first place so saying you're out of your mind because you were doped up with methamphetamine good well it's not a voluntary granted it's voluntary intoxication and he's responsible for having taken the methamphetamine but we're not talking about a case where his contention is look i was too high the know what i was doing at the time the contention by the expert would have been that he eleventh hour to move to continue it the judge had very good reasons for denying this motion the motion was made four days before the start of trial in a case where counsel was the counsel at the preliminary hearing and had done nothing for it for the nine or ten months between the preliminary hearing and when he finally got around to making this this motion four days before trial so the judge was right you know he waited too long to bring this motion and what that did affectively was it put counsel under the gun because he now  so so the record whatever the record shows is that it's the council rather than having a strategic reason here it's the opposite he's strategically moved to continue to get expert testimony that he never go so it's a problem saying well you've got to get expert testimony so you get expert testimony and the expert just takes your case and so you say give me more time i want you shopping for expert story get a good one but no experts on his case that's the point the only expert that he got says that he firmly concluded that he lacked the intent to kill that was the only expert opinion the only experts opinions in this case are that he lacked the intent to kill this is unlike those cases where they go out and they get t standing up this idea that there was a lot of damaging information in the house report i disagree with that if you look at what they what they call is damaging they're saying that well you know he he was faking bad but i mean he was  opinion the bottom line of which is supportive and there's some some stuff in there we could talk about go back and forth i've done that i do you put in the good stuff without the bad stuff from the how also opinion i thought the howls of opinion was pretty bad actually when i read it well it isn't so bad i mean i thin were basically thinks that your client was lying to him and also eighty eight ye prosecutor who also has the record says what about this line he was giving me a line of b s and then would almost sit back and i the effect on me of the art information he just provided what you know what's true what's the relevance of the of the line i mean i'm not saying brain damage and and dr benson wanted us to do that but we couldn't do it because he's in prison and we need some kind of a of an order that would only be forthcoming in a hearing so it gets back to this idea that we had an evidentiary hearing we would have had an opportunity to present this kind of stuff but we never had that opportunity and you know i went into extensive detail about how many flaws there are in this in the courts state courts opinion that nice relief i mean he says ridiculous things like  tactics are unreviewable on haiti's corpus i mean that's just totally wrong tack there are cases holding that you have to find out what's the reasonable investigation of proceeding that so called tactical decision and if there was no reasonable investigation he's way out in left field as a supreme court judge she gets to do that but here we get to see whether there's any basis for his opinion any reasonable basis and there's not and i had better ask you to dr was in this case what we have what the record does show us is that the trial counsel was counsel for it turn for appellant during the preliminary hearing which was which occurred on may twenty ninth on june fifth seven days later is when appellant was first interviewed by dr house so counsel head immediately after the preliminary hearing started the process of getting appellant reviewed in and analyzed by a mental health expert because he recognized they still in the evidence in this case that it did come down to one issue and that issue was defense which focuses in and says because of a mental defect or mental disorder this person was not able did not actually form the intent to kill also could choose to focus on the circumstances of the crime focus on the evidence and say mr of his mind that night but he didn't intend to kill anybody and let's talk about where that and focus the jury on that on that argument anyway i had one of these shot three times and decided to investigate both of those avenues he investigated got a mental health expert and that mental health expert dr howells presented him with lots of potentially damaging information about the different ways in communion to august was it august that went along with that the judge said i'm this is this going affirmative defense to die this is evidence that's going to come in after the prosecution's case in chief after everything that we've gone you don't really need to work this stand immediately in the prosecution's case in chief did get continued for other reasons until october twenty first so it was actually almost a month later that the trial actually began and he had made indicated he was going to get he could get a written report within ten days from d record is unclear as to what he did at that point all we know is that he doesn't have a formal written report from dr siegel and it seems to me it's a marker is because it seems as though he made the tactical choice that he wanted to put on a mental health defen he tries to put it on he gets he goes to far as to get an expert to say what he wants him to say but then he doesn't follow up with the last minute and there's no explanation for that why is that a tactical choice well it's unclear what some basis but we don't know is what dr siegel told counsel if anything we know that dr siegel didn't prepare a formal written and it could very well van because trial counsel called him up and said know that dr siegel talked to defense counsel after reviewing the reports in the videotape there is no indication that he did there must've been some there some sort of conversation we don't know if it was just called about said i've changed my mind all but all we know from the record is that this attorney wanted to pursue the defense he comes up with a late continuance most motion the judge says well try to work again you've got a few days and then nothing happens direction of he's recognizing he didn't have the expertise and methamphetamine pointed me in the direction dr siegel and i felt that since my one expert told me that i needed that center i should go ahead and contact  so whether he went from the start that i would have to present a mental health defense or that he was saying i need to investigate a mental health defense he has again this case was very focused on the specific issues that went right on the issue of intent but what we really do know is that the investigation was never completed prior to the trial and the jury got the case i don't know we don't i mean we don't have anything that indication of i didn't get any information that question was never asked to appear apparently even though counsel turned counsel and allan throughout the years might have had access or could have asked t but also he also directed them to dr siegel himself and and there's no indication about whether dr siegel has now come out and said oh yeah i was told this or that so you've got this potential see anything the record that really supports that well factual fine other than the fact that trial counsel was very concerned about this being a double edged sword very concerned and expressly indicated i don't want to present this evidence unless it's tactical decision or not or wasn't just a decision that was made because the time ran out on him he couldn't investigate and then we have to say whose fault was that i mean that's those are those are the issues that build in there but when that's when the state trial court says this was a tactical decision i just don't see anything except perhaps circumstantial evidence for tea leaves or if you can draw that conclusion well i think all the evidence in the record indicates a trial counsel was it recognized that he had an obligation to further investigate he tried it to do that he recognized that this area of investigation was likely and had potential problems and he wanted to look into it anyway he worked out a situation with the trial judge you know if i thought he worked out an agreement with the trial didn't seem to be agreement with that if you would have sufficient time and then ultimately didn't present that information and under those circumstances for what reason we're going to use about which side you're on now you're telling us what a terrible job the defense counsel then yeah so you must be arguing the defendant's side of the case and i'd say you did terrible job i'm saying that under strict september twenty second four days before trial and the reason for the continuance is that a continuance is required to obtain the advice of certain expert consultants in this case i also point you to page seventy one which is a letter from  what he also says i believe that these documents are responsible to your request that's all he's got he's got he's got a lot that's all he's got well that's all he has that's all he had to prepare to provide i asked him for correspondence or whatever he's got there's nothing from dr siegel in this to fifty four d to defer to on this is the thing that excerpt page thirty three and thirty fourth precisely and just the final comment i was trying to make is that you know even  i mean this this was a close case and what we're saying is that if this would have been enough to push it over the top thank you very much thank you c