if i might again no defenses were available under state law even considering all the evidence that was presented to both the state court and the district court  well correct your honor but you but the evidence application or says counsel should have just discovered still he didn't show that it was available at the time trial many of the witnesses changed their stor jumped on that instead of that day and petition i said well not exactly that day maybe earlier in the week or it happened a lot and that was all he was writing for the reason stated in the brief under the jody arlington petitioner sr was not available her attorney was protecting her because she was a potential suspect in the murders and wouldn't allow pickens access to her she also  family i wanted to be a normal kid i didn't want to talk about that's so there were several reasons why she was unavailable and could not provide that information kathi ackerson her best friend was a political she never saw any of the trial counsel testified at the time i talked to her several times and all she told me was that it really didn't do it now the fact that she changed her story later on doesn't make trial counsel's investigation under two conditions one the defendant is charged with intentional murder and and the indictment and number two if intentional murder is actually a lesser i so he was entitled to the instruction and he put on it either fast that's not petitioner's case he was not charged with intentional murder a review of the indictment shows that he was charged with three counts of aggravated murder under the argument that was raised in both moore and running that well just be because the state has to prove the element of hat then we get to put on a defense of the b one because i recall here that there was an instruction given on the correct counsel have one argument and that was that the commissioner didn't intend to kill his little sister and that's actually a good question your honor because lack of intent is one of the defenses that sad keep her here so that at least advanced in tampa protect her rather than then kill her that was all counsel had that's why counsel made the argument and asked for the manslaughter instruction and that's why the court  a legislative creation that doesn't necessarily just prove in what the case law says it is you still have the unt chance because of the special circumstance of your emotional state will reduce that to manslaughter so petitioner wasn't intitled to a lesser included instruction on intentional murder because he wasn't charged so the question as well was intentional murder actually a lesser included aggravated murder in this case well what escaped the eyes and and not guilty of aggravated murder so because a jury can't find you guilty only of intentional murder you're not entitled to the instruction because it's not factually a lesser included  so petitioner was not entitled to an instruction on intentional murder and therefore the easy defense was simply not available as a matter of petitioners argument i on the couch and in the bad there is absolutely no just beautiful as little as to the fact that these folks were sleeping so as a matter of law there is was was missing in this case now petitioner argues rael but that oregon recognizes battered women syndrome and battered child syndrome evidence well yes it does but not in this context what that the amount of investigator time was very life for a triple murder right and a lot of the investigators time was spent talking to the lawyer  recall correctly there were some expert testimony criticizing the amount of investigation i'm glad you asked that question your honor not two points one factual one legal first of all if you review counsel simply not subject to expert opinion in other words an expert opinions the base of the basis of an expert's opinion has to be  certainly and i don't see any harm way to reserves but nonetheless one hundred nine page transcript taking notes during interviews producing reports that may go to the ultimate issue of reasonable but it's not constitutionally mandated if you do fifty hours of investigation whether you have notes or not and you can't produce anything that helps or that's not unreasonable and scrap of evidence to mitigate what you did what occur it was not done in the heat of passion it was cold blooded it and to this day i have yet to hear a satisfactory explanation a reason for the conduct and frankly you've put me in a position where i'm sensi from a lack of information why doesn't that show prejudice in the sentencing context well two points your honor first of all that statement by the trial court came out after  so if you need one take on t the evidence was available but it hadn't been discovered due to the lack of investigation and just to give you a couple of examples she mentions kathy ackerson and that her testimony would have been a political book kathy actress an actress his attention and punch him so hard in the head that he said he thought it would knock them unconscious and who said that really lived in terror all of that the district court filings and the evidence showed it was available but it wasn't found because there was no investigation done there was ten hours total for triple homicide case done by the investigator in this case alcoholic that evidence have impacted the guilty it would insane verdict so under strickland the prejudiced question is would any one of those four defenses have resulted in reasonably likely to result in a different outcome these two district court judges while the district court all the magistrate judge in the district court found to the contrary based on the live testimony of dr stan us and what what the state doesn't say but that makes all the difference the people that did the a valuations way back when none of them knew about the severe abuse none of them knew about the head trauma they were in the dark the only expert in this case who was ever made aware of all that happened to terms of guilty but insane and the other thing is because they didn't investigate to find out the head trauma nobody ever had any neuropsychological testing gun on him whatsoever but once it was done it showed the organic brain legal standard in oregon the testimony before the district court and the findings all that are consistent that there would have been an instruction a guilty but insane and the additional finding that had destruction been given there was a reasonable likelihood that  mischaracterization to imply that there was little evidence of intent as to back these murders they then go on to argue that quote it's completely speculative that it was the charge concerning becky that the jury had difficulty deciding quote and even more speculative that the issue was intent and call well if you will turn to volume one of the excerpts of record and turn to page one thirty one on page one thirty four of the record shows what was the date november fifteenth the day before that's when it was fine by the jury you look at the verdict on death guilty on was that date night before november fifteen night and they come back and deliberate two more hours before vacuums and you also recall that they said it's speculation that it was becky steve they were stuck on but quote even more speculative that the issue wasn't well the sphynx exaggerated if you turn to the excerpts of record through page one fifteen you'll find defense counsel one and a half age closing argument and the only  a reasonable doubt and proven comfortably is manslaughter the reason i say that is that there's nothing to indicate that there was any intent on belief part when these actions began to kill his mother and his father there was no intent on his part still beckons why would he have ever taken her up stairs unfortunately for vaccine it is tragic she came down the stairs i'm sure the screaming started the first thing that happens and someone wants to quiet that i don't think that at that point he intended to kill or at all either but something needed to be done in regard to the screening again that was half of his closing argument it was that there was no  and intentionally murdering his mom and his little sister both of them as the aggravator intending to kill them as well their whole argument about e d not being and this is another inaccuracy in the briefing by the state the state says that the aggregators that during the same episode you kill another person that's not it must murder another person and murder requires in killed mom and becky only then can bring it back so in this case the fence counsel's argument was no investigation that there was no intent to kill becky's that was enough for the judge to say oh there's a dispute on the intent to kill becky and if that's the aggravator then there's some evidence on which i should charge on the less certain cooter defense of e g a defense to intentional murder because if he's got a if you have to really roll around in the fact you've got to really roll a lot around in oregon law but if you do that you'll see and all three of the oregon spring court cases cited by them and by me for that matter and running on the fact is indistinguishable in all of those cases the trial court judge gave an easy defense and he said quote it's only a defense to the lesser included of intentional murder and that's all we're asking that's what he says in all three of the cases the appellant tried to say well wait i should have gotten that instruction for aggravated murder two and organise free court every concert no no no it's not a defense spending that's not what we're all that evidence which the court found that they should have that organ law with soledad that he would have had no argument under that's just not that's not there that's not right in the way he was that he had the head injuries and damage psychologically that he had obviously that's going to be relevant at sentencing as well as any one of these that's critical here i gather is not running know nothing in the law to prohibit that i'm hard pressed to give up a little bit of time when i feel i've got so much to say is there any of the four defenses that any of the three of you have any question about because i would sure love to address any concern that you have as i'm convinced that the courts were right in finding that all four of their law and i'll end it there and you're pretty close included and here's what i saw in the court and i sense that an argument that the defendant was not acting intentionally when he caused the individuals that does not distinguish intentional murder from have repeated murder that argument has easy correct your honor but again as counsel points out in state the range the court said e g is only a defense to intentional murder he can't get to intentional