that and a doc is going to come down and take you head off with anything so don't feel constrained when the red light comes on yes i also don't feel as though that suggest that you have the rest of your natural life time to proceed right thank you for the few moments and talking about the beyond a reasonable doubt instruction claim in this case and taking taking judge nikki your cue let me begin with the procedural posture the state courts ruled that this claim is procedurally barred that it was waived the state courts waiver ruling as judge pollak found below is not based on an adequate state ground the stick it's the classic pennsylvania inadequate procedural default  given the state courts waiver ruling review of the of what we submit is an iranian beyond a reasonable doubt instruction is you know by this court the commonwealth has devoted several pages of its brief arguing that your honour's should rule that the state court bar as to this claim is appropriate i can talk about it if the court would like but i'll simply note for you that in banks faith he jermaine carpenter right  reason to go to a strickland in effect in this analysis and as to the due process claim the instruction itself told the jury that a reasonable doubt would cause a reasonable person to restrain emphasize that word restrain from acting in a manner of great importance in his or her own life but it didn't say that alone it didn't set out alone and were required to look at a charge in its entire yes and what else did the charge say with respect to reason and nothing else on reasonable doubt as far as we could tell corrected that restrain instruction that was provided the judge pollak quotes the instruction in his opinion the common off described in its brief we've described that this isn't a situation where there is a later instruction that by the way that restrain language that i say i misspoke no but it's not just restrain is it is isn't there some reference to him to pausing or in my thinking of some other reference here or some other case it is only to restrain in this case only to restrain yeah i think your honor is probably thinking of west vs vong which is one of the primary cases that we cited in the brief and west is significant both for teague purposes and substantively and i'll talk about in a couple of minutes but just to stay at the substantive level what west involved was an instruction to told the jury that the jury had to have a substantial doubt and as the court is aware that's that's error under kids versus louisiana later in the instruction of the court gave a construction of substantial doubt which was that the jury should hesitate from acting and that the court in west held cured because it gave context what the word substantial met by substantial i mean hesitate and it fixed the bad language so to speak hesitate act really is a classic language used in pennsylvania reasonable school and virtually every case and it's the language accepted by victor as the as a good instruction constitutionally the problem in this case is that the core instruction used the phrase restraint and it's used that phrase in a manner that nothing nowhere is there a part of this instruction where the judge says oh by the way when i said restraint i misspoke i meant hesitate or by the way when i said restrain read restraint to mean and then provide some language meaning hesitate in pausing something something along those lines so there's nothing that fixes for the jury the word restraint it's worse actually then the cage instruction which talked about a substantial doubt because restraint lowers the burden if you look at it jury instructions you have the birth beyond a reasonable doubt standard is up here you have the cage standard substantial doubt would be an easier standard for the commonwealth to me beyond a reasonable doubt hesitate appear substantial here restrain is as bad as it can get restraining means dictionary wants both in black's law dictionary and any dictionary you pick up on a street corner it means  use of force pressure prevent the action it means i can't it means under holland i'm sorry and the holland case is the really different than the holland case yes the the holland case your honor had a bad positive construction which wears this one has a bad negative construction as to reasonable doubt in other words the holland case now the holocaust by the way is pretty winches it's not a constitutional case it's a federal jury instruction proceeding but even there what the judge did is the judge gave an instruction to try to describe what is reasonable doubt is without qualifying and here's the qualification is that it has to be something that stops the jury acting and you know this is one of the sort of one of the aspects of the proof of how bad this instruction is is that the commonwealth's ultimate argument is you know what it really doesn't matter because jurors would bring their common sense and and even though restraint may be bad jurors would bring their common sense when they're listening to the words beyond reasonable doubt and common sense would tell a juror it's not restrain and you know i'm not sure i'm willing to concede the point but just for the sake of argument let's assume that that were the case the jurors commonsense can fix an instruction that the put such a such a low burden on the commonwealth that so drastically changes the reasonable doubt standard what you have here from the judge himself is an instruction to the jury however that says directly now discard please any notion of what a reasonable doubt is that you may have formed from previous reading or whatever and kind find yourself simply to the definition i am about to give you so the judge tells the jury don't bring your commonsense to bear the words that i give you are the words you should apply in your evaluation of this verdict and so it's bad it's a plain constitutional error it leaps out of the stream it's of that reasonable doubt standard and in the words of justice scalia and sullivan versus louisiana what you have is a case where for when you look at harmless error analysis and you're honest i'm sure have noticed we've made no harmless error argument in the brief because in the words of justice scalia when you have a bad reasonable doubt standard there reasonable doubt standard for the day to be vale you're arguing that we can't get to that point because of cage and then i think teague peeps in that or maybe it doesn't because maybe cage cannot be applied to this case and let me let me go there in a moment but just the premise under the constitutional motive analysis even before sullivan the premises that the entire idea of what you apply harmless error analysis to is missing when you have a bad reasonable down instruction what do you apply it to there's no conviction so to speak that's that's that's the constitutional underpinning going back to cool versus united states in one nine hundred seventy going back to cases from the seventy's and from the sixty's and there's plenty of them there's there's also a county and millenniums answer from winship connecticut versus johnson francis patterson versus new york all cases preventing this trial that talk about the significance of the beyond a reasonable doubt standard now those cases dealt with that instructions on elements of an at or burden shifting but all of them as they're predicate have the core constitutional value being the beyond a reasonable doubt standard and when you take that core constitutional value away just as coolly as totally correct what is it that you apply harmless or a standard to now you could apply is as judge smith as you suggested there is a mode of harmless error analysis that looks to it's kind of harmless error you look to the instructions as a whole and you say well was this error fixed by something else in the instruction and we if we call that harmless error it certainly is appropriate for this courts undertake that type of analysis and our position is when you parse the transcript carefully there's nothing that fixes this bad instruction and so that most of her harmless error analysis doesn't fix the problem here unlike in the west case and the court in the victor case didn't the supreme court said the issue in a situation like this is not whether it could have been misapplied in but rather whether there's a reasonable likelihood that it was misapplied and in you you in applying that task you don't take into account all of the circumstances including the evidence in the case well if by likelihood the court meant you look at is there any way this defendant could have ever been acquitted then you might as well not have the trial might as well not when i just will not have a trial if harmless or analysis means this person would be convicted no matter what under any circumstances for purposes of that reasonable doubt instruction that then that would obviate the need for the trial itself the core right that mr thomas has and other defendants is the right to have a jury verdict beyond a reasonable doubt and he was not provided with that and a motive harmless error analysis that goes beyond the four corners of the instructions there's nothing to repair that underlying constitutional violation in this case now turning back judge mchugh to your question as to the applicability of key t and kate how the interplay with each  other this circuit helpfully has precedent on this point and that precedent is the west versus one case that we've described in there in our briefs it's a two thousand case and this court west held four things and let me go through each of the four one of them has been overruled by the supreme court three of them remain the law of the circuit all three of those are in mr thomas favor on this claim number one west held that cage for that cage  a new rule for purposes of constitutional retroactivity analysis now if your honour's would bear with me for a footnote for a moment we've been talking about this for a couple of weeks now we can't figure out how cages new role i just rattled off a bunch of cases predating cage that talked about the significance of the beyond a reasonable doubt standard but i will tell you that is the law of the circuit cage is a new rule therefore as to that issue west has already spoke and as your honour's know we've discussed this in a footnote in a brief but we haven't the lab rated on secondly cage held that for tea purposes the rule of cage is quote essential to fairness and accuracy in a jury trial quote it's a bedrock right which must be retroactively applied so for teague purposes cage held i'm sorry for teeth purposes west held that cage is retroactive and that's the law of the circuit third case west also held that cage is retroactive for purposes of the federal success of petition filing that you need to hire more a bad substantial down instruction you secured by a later instruction is judge smith and i discussed that uses the phrase by substantial doubt i meant hesitate before acting you don't have that kind of cure in west is consistent with the holding of the tenth circuit in tillman which we cited in the brief the second circuit in gains which we cited in the brief and the fourth circuit in adams versus eight in which is cited in west itself so there's case law from other circuits saying cage is retroactive for purposes of teat in tyler versus cain the supreme court addressed the question is cage something that opens the door to a successive petition filing i'm a petitioner i filed i litigated i lost i come back to federal court a second time after cage and i asked for permission to follow successive petition and the supreme court held that given the higher burden for success of petition filings cage does not open the door to a second petition that's the holding of tyler versus cain tyler versus cain did not overturn this court's substantive analysis in west and tyler versus cain did not overturn the law of this circuit the second circuit the fourth circuit and the tenth circuit that holds that cage is retroactive because it's bedrock for purposes of a team analysis the law of this circuit is also in banks and in maclaughlin which were cited in the brief that when the supreme when there's a precedent that's on point from this court on point a and b and the supreme court overturns or point  of that precedent point b is still the law of the circuit if the supreme court did not overturn the teague aspect of west and so the president of the circuit is that cage applies to mr thomas's case retroactively under teague it's a little convoluted but but when you look at west and you look at the three pages in our third step before we've actually laid out this history it's very clear west determines the teague issue and determines it in a way favorable to mr thomas and ultimately you know there there is an aspect to to the commonwealth's admission that tries to make light of this issue as if we're just playing a word game here but one of the core principles that we all learn in the first year of law school is jury instructions mean something i mean those of us have tried cases we know they mean something to juries and when you give the jury a bad beyond a reasonable doubt instruction it is bad and instructional error as you can get this court has granted relief on other instructional errors in capital and non capital hades cases when you have about beyond a reasonable doubt instruction you can't get worse that when you have an instruction that flat out takes away from the common law the burden of proving guilt beyond a reasonable doubt so that there's really there's really no conviction there unless your honour's have question that's that's my presentation as to the beyond a reasonable doubt instruction the breach of laid it out clearly and our position is when you look at the actual applicable case law this is this is a legitimate claim in a legitimate claim upon which mr thomas should be granted a new trial with that my next topic for discussion was going to be depending on how your honour's want to handle it the issue of ineffective assistance of counsel at the penalty phase technically where the apple lean on that issue and expo can for a while on the e leave mr glee however with the thought that this this really is a case of very bad lawyer thank you because he's going to say that's not the issue morning judge morning morning which they built and good morning made it please the court my name is david gleave from the philadelphia district attorney's office representing commonwealth in this cross appeal we are the jury instruction issue as the court court would like just before i begin i'd like to thank the court it's it may not be clear from the worry for so i actually came into this case at a fairly late date there was a person at my office robert fallon who had handled the case both before judge pollak and at the initial stages in this court he wrote the red beret he left our office i was right in the middle of doing a sort petition last summer and i appreciate the court's giving me enough time to finish that project and to move on to this this one and so i'm the one who wrote the gray brief so it's ring to upgrade the color code that's not me i think judge smith in his comment to mr in all this pointed out an important fact which is that instructional holding a boy it's strictly a strong suggestion that there is no right to a knowing informed waiver of mitigation i just cannot somehow my mind can't right right going well that's actually where i was going to start if i were if i come up here so i'm not i'm still confused why don't you go where you want to go and we can get to the really well we're going to shoot let's let's let's finish just just it's fun to keep on a continuum i think i think i agree in certain part with what mr dulles is saying and i agree with with judge smith i think the law is fairly clear that in cases where you are looking at jury instructions the the law is very clear that you have to look at the instructions as a whole you're not supposed to parse them or find meanings or do hair splitting and especially you're not supposed to focus on one word you're supposed to look at the entire ever everything there and the standard is do you agree that at least semantically the introduction of the word restrain and the notion of restraint somehow ratchets up what it is that a juror is going to do while listening and while deliberating from the notion of mere has to wear your honor i think when you when you contrast the two which is what happened in the brown case the brown versus leno case i'm familiar with with the court's footnote in that case expressing some reservations on this very issue but that didn't happen here when you say hesitate versus restrain this is not mere has its hesitation it is a restraint i think in that case you do get research in to these two words but it strikes me and would strike me if i were a juror that hesitate conveys more passive it in the notion of it does that matter i think that's right but the question and the question is not whether the question is actually whether both terms can be said to convey to the jurors reasonable doubt and we think that that they both can in fact contrast the word restrain which is used in this case with the word re frame suppose the instructions had said reasonable doubt is a kind of  natural thing if he has a tape for a period of time you refrain from acting during the period in which you have it or your honor just in the same way and i when you look at the word restrain which was used here there's a there's a very ordinary sense of restrain where one acts with restraint one acts in a restrained way in fact one prisoners are for brought into the federal courts there in restraints doesn't mean they can't move it doesn't mean they're absolute they they mostly suffering from then that momentary stopping or pause and i didn't ask mr knows this and it seems to me if we are if we get to the merits of this question from a due process perspective i'm curious how one goes about crafting a constitutional rule is to just what what measure or how many  semantical restraint were activity is required to get to a point where due process is violated but but clearly if you have to admit t words are distinctively iron internally of what it compels a juror to do or not i think in the way that the court has has construed this and i think that that intuitively to me restrain is somewhat more inhibiting then than has it i agree but i don't think it was enough to say that the jury didn't know what a reasonable doubt was especially what else and the jury would fix that common sense flies out the door and have legal discussion because you're hung up with the emotions underlying who can win who's who have you and mr know it's these i have never had that difficulties i'm really delighted that given th taking what you just said that it does suggest a heightened level of certainty slightly heightened well i mean the pennsylvania supreme court looked at this in december and looked at this exact question and said yes we see a slight difference but it's the minimum is really the question is not whether restraining is slightly slightly more restrictive than has the tape that's not the issue the issue is whether reasonable doubt the jury act which is what the supreme court itself said and when you look at that when the that's the holland case the judge they able to imagine look at that that particular formulation you can look at that in two ways you can look at a person if you look at  person in a matter of something important who is already acting the reason about is enough that he acts on it which means pauses or hesitates or you can look at a person who hasn't moved at all in a  matter of importance and a reasonable doubt is enough to cause them to act it conveys the same idea what you really suggesting you seem to our criminal justice system is bait based upon semantical distinctions that qualitatively are not that different from deciding how many angels can dance on the head of a pin you saying that not differences are so minute and so subtle that it's really the same thing in the interview process was turns on that distinction then i don't think i would go that far your honor i'm i mean there is there is a difference in the way the words are used and i think that the court's in a lot of mail because of these exact kinds of problems a lot of courts have just simply tried not to find reasonable doubt at all just because when you define it you use some other concept and then that gets that becomes confusing in this case it seems like that the courts have been trying to make something more clear something that's intuitive i think that's probably right but if the fears that the law is for that then doesn't that subtle difference never thought i'd have due process implications might be a lot of difference but there comes a point when a matter how slight the difference the difference becomes the difference between a and b maybe a very slight very subtle one but there comes a point where that difference to matter how small it may be is still sufficiently great the rise to due process well that's what cajun sullivan say when you look at the louisiana instructions the louisiana instructions talk about reasonable doubt as a grave and substantial doll and the supreme court was clear that that's too much that sets the burden on the commonwealth to low when you look at at one incident has because a grievance and things of what would actually c usually made with this charge as a whole as mr moss says in the overall flavor of the charger the something else in the charge that would suggest to the jury what their obligation is and what the burden of the proof is and here if you don't have which was actually taken from the pennsylvania supreme court i admit i'll concede that the phrase itself is awkward restrain from acting and i think it's because when you look at the early formulations of this in the in the pennsylvania cases the phrase was actually it would restrain a reasonable person from acting and somehow the phrase a reasonable person got moved away and then he got restrained from acting going together restrain is something simply a possible doctors are speculative dollars he doesn't say hesitate doesn't do the same thing as as in brown but he doesn't merely simply he doesn't simply say that and as far as him as far as a judge saying put your put aside your common sense that's correct the judge that said that but at the same time it's you have to understand what i'm going to tell you after this in terms of your comments that otherwise you won't be able to understand it all or because i'm not sure maybe it's just me and my little myopic mind i don't know how common sense helps one to understand the technical term beyond reasonable doubt if you take each one of those words be sure sounding to pretty easy and say you put them together in the  new process claim and i'm not certain that that is the kind of legal through the common sense really hopes you're with there may be a better way to to formulate i mean this is the i think victor is the case where the court said there  a lot of different formulations we're not going to require the courts to say it any there are basically are not any magic words it's sort of it's sort of approved as a tape to act in a matter of great importance although it said it that's not required either i think our position is basically if the court does get to this issue the difference of the difference in the two is so slight that it really really made no difference as far as reasonable doubt was concerned  different kind of qualitative one yes and it's a very that's what we're saying it's a very tiny quantitative quantitative difference i was when i came into the case coming into it late i i did some research on my own and try to find out what other k what other courts of looked at this exact issue in this district alone i found the i found district court either this record judges or magistrate judges who have looked at either this exact a slight difference between this and hesitate but it's still within it's still within the limits of reasonable doubt it's not enough especially because and i have i agree with mr wallace if there is an error here it air but that that doesn't mean that the error is easy to find because to get to the air you have to apply boy you have to say that there is it's reasonably likely that the jury didn't apply this didn't apply reasonable doubt let's say the judge said something like reasonable doubt means more likely than not that's clearly flat out wrong if the judge said that we would be the first to come before the court and said maybe it's relief after has to be granted doesn't matter what the evidence is my life and if it's nothing but it's nothing nothing even close to that  that would be clearly wrong this is a slight semantic difference and nothing really hinges on it and many many judges have looked at the exact the exact same language or what i think is stronger language and said it's slightly different but it's and it doesn't violate the concept of reasonable doubt let me make sure i understand you started on me saying of course that you've got to take instruction as a whole and read the whole thing and what it communicates to the jury but since that time you have not said anything that i have heard other than that the difference between restraint and refrain is the demand of or close that is causing the the restrain from acting language the written that's correct there's nothing in this charge that the judge did contrast the reasonable doubt as he defined it in the to use the word restrain he contrast that with speculative a possible dial and said it's got to be an on a stage and he went out which we think is correct and it's something that would cause a person to restrain from acting which we think is correct so there wasn't any it was there simply wasn't any need to correct it it's not as if the judge did say reasonable doubt means more likely than not or even reasonable doubt means clear and convincing we we would think that was that was wrong to but this is just simply the language itself this focusing if we have to focus on this one word is is i admit and i agree i agree with the courts and mr nolan says intuitions on that it is slightly stronger than the word hesitate but it is  it's something that it would be sufficient to cause one a reasonable person to act that that gives you an idea at least it's not it's not after you read that it's not as if you you don't have any any clue at all you're just simply trying to figure out what the the two words mean i agree it's difficult and perhaps the court should come up with something but again the problem is when they come up with a with an extensive or an example or an illustration then we start picking o so we don't that was essentially we don't think that the word itself survives the boy test and we don't think that that word but that you can look at these instructions and pick out that one word and say that because of that word it's reasonably likely that this jury found thomas guilty beyond or with less than a reasonable we just don't think that's that's it's even close we agree that it's slightly more stronger formulation that has a tape but again it's different because the judge did not contrast it with hesitation i think this is this goes to the footnote in brown that judge smith wrote when you look at the word restraint contra it was contrast in that case the judge in that case said it's not mere hesitation or it's not hesitation it's something stronger than that that really didn't happen here you had you had the contrast between restrained action and simply hypothetical speculative dull which everyone agrees is not going to be on the table as it's difficult because to the sound that boot is the test it has to be applied here and almost structural error and structural areas is a major it's going to bitch the guilty sides and require a new trial i mean if this language requires a new crowd we're going to have a lot of people getting new trials because this this language or the language that talks about acting and being paused or being hesitate or being restrained or brief reining from acting is has been used time and time and time again and it's just it seems the it seems as though of me in the pensive mainstream court opinion the what was decided was not the issue that he raised he said he was arguing that there was not informed as i understand it mr know in the extent that he was the defendant was then in another part of the trial he's asked about his what he wants to do all those answers seem to hearken back to the two face he doesn't want to say anything he doesn't want to resign an his own testimony but i'm not sure that that was intended to go to whether or not he wanted mitigation of the one and even if he had the time he said he didn't want evidence of mitigation even if he said it seems to me that he has to be in a position to know what the heck mitigation is there's a whole separate argument about whether or not the evidence they say is mitigation is mitigation i understand that we we can address that but right now it doesn't strike me as the situation that we have where somebody is quote a volunteer mr just would you concede what the pennsylvania supreme who said in the first instance on appeal from sentencing in the capital case characterized what he did and what the supreme court said it did in the first instance right in there i think there is an affirmation significant difference for us here in terms of what we are as well i think i think that's correct and i think you have to look at the entire picture though you have to look at the fact that when you raise a certain when you raise an a claim of ineffectiveness for not presenting mitigation mitigating evidence at sentencing and being ineffective for that can you continually as things progress this thing as you get to the appeal stage and then you go to the p c r a stage and then you get to the p c or appeal stage and you continually change that claim hoping that the court will eventually say we already looked at this well and then when you got what if michael arean chord said on directed from the conviction was that appellant complains that his trial counsel did not advise him that he could put on evidence of mitigating circumstances and that this is a mission was prejudicial effect it's much more limited is it not than what the supreme court later on says in the year two thousand in court said in the first instance on direct appeal well that's judge pollack looked at that exact question and said he thought there was a difference too but because it was the state courts speaking about state law he would take the pennsylvania supreme court as its at its word i mean the the pennsylvania supreme court in doing that is trying to prevent basically being gained being gamed by someone who can continually changes their claim and then eventually waits for the courts to hold up its hands and say say look we already decided that and then basically comes back later and in federal a b s and says oh well the court didn't look at my claim therefore i get an over review which is essentially what what is going on here i mean there's nothing wrong with the steak or doing that the state court is looking at the basic claim that is being made the fact that the claim keeps changing later on doesn't still mean that those those claims w about your honor i think actually when you look at the progression i mean essentially he made a gesture the most general claim at the very beginning on direct appeal and then made it more specific i think on p c r a he made it more specific by giving affidavits from his from his mother and from from his sisters and then later on on piece you're a appeal it was well you know look at all the psychological reports that should have put been put in i mean all that means basket basically of expanding basket but because the pennsylvania supreme court said we actually we did look at it that's what that's going to be the benchmark i mean it's difficult when the claim does keep changing and you can see why the state courts would want to kind of clamp down on that and say look we're just not going to game the game this way you have a claim make your claim and you can't just keep changing it after that hoping that you're going to get fit more favorable treatment later but we think we think in this the context of an evidentiary presentation you can say the same thing about the giving of the right to testify and once we have it we never really held that you have to have a fundamental knowing involuntary we were intelligent we were open evidence  pennsylvania supreme court's finding on the decision that brian palmer has made i would have argued that that slightly differently because under pennsylvania law this the pennsylvania supreme court obviously looked at the fact that there was a colloquy and there was a waiver of to present mitigating evidence the pennsylvania supreme court as a matter of state law could not have signed off on that waiver unless it was intelligent knowing it voluntary and i'd be happy to give the court case  the court case for that so implicit in the pennsylvania courts basically signing off on the waiver saying it was a valid waiver it did make an implicit an implicit oath a factual and a legal finding the factual finding was made right there at the trial itself i mean that was the whole reason for a colloquy it's not as if brian thomas simply stood up and said well i don't want to present any mitigating evidence and then the court's if we moved off there was a lot of discussion at back to whether he understood what was going on it seemed fairly clear at that point that the prosecutor was talking about things that had nothing to do with the crime the prosecutor was talking about his previous criminal conduct the prosecutor talking about so i guess the attack on the child that had nothing to do with the prime actually the prosecutor mr king stipulate  understanding of mitigating evidence or how exactly all of that played but he knew that the guilt phase was over he knew this was to determine the penalty in the house serious it was he knew this was life or death and he still decided there i don't want  kind of cases we are actually in when you look at the record or the the law and these kinds of cases these kinds of cases really aren't that uncommon there are there are a lot of cases where exactly this happens and i found the lambert case the presumption but boy when you look at that closing argument that's what i said earlier it's hard to presume that this attorney was acting in a professionally stricklin manner and manner that almost two pages of ram making as a former pennsylvania district attorney in pennsylvania trial court judge who's heard his share in a prior life of incoherence this ranks as one of the more memorable examples of that there's not much to be said for this closing argument is there where your honor it's it says what it says and if if the i think you imagine anything more insulting to a jury in the penalty phase than telling them except essentially they were wrong well actually your honor when you look at that i don't think he was doing that i think he was he was focusing on a question that the  say i agree that's the i'm inferring that from the record i could i could say i mean when you when you look at i think it may be unfair just to judge mr watson who i don't know and i don't even know if he's still alive while you're on it if the question is could it have been better of course it could have been better and it would have been like you think the complicated here is you've got the three aggravators which argues no doubt the aggravating factor there you've got the prior heinous conduct by the guy very sick and worst and most profound sense of that word but the flip side of that is and i don't i don't know what would play out in the minds of even one juror that all of the mitigation would suggest his history of depravity and sickness and wanton cruelty and i've seen a and that's how we have to look at it could take all of that in argue to the jury that everything that he's done including the crime that was just convicted convicted of is totally explained by a diseased ment to the head that he suffered when he's twelve years old so that the force of all this stuff it seems to me could be very seriously blunted by an attorney you know what it was doing who had done the investigation before trial who knew that he had something to argue to explain this guy's conduct not just in this case but his conduct with the horse the conduct with the three year old it all i can't say it makes sense because it's too insane to make sense but it all has context if record is silent basically we're not on an even playing field here it's up to my opponents to come in and show to proffer something from the attorney that said no i didn't do any investigation  requirement come from i mean it's good if you have direct evidence but the law has always as far line i'll recognize circumstantial evidence as well right and i'm just pollock said if he did investigate  we know that this was readily accessible to him and he would have gotten this and if he was competent he would have at least gotten some help or a mental examination of his client well what i'm saying is have least going to give us a hearing where we can question mr thomas about whether he really did think that mitigating evidence was limited to this and when we can hear in cross examine all those mitigating diligence purposes of twenty to fifty forty two it can't be enough because why not it can't well it can't be enough because it's too easy there has to be some kind of proffer for an evidentiary hearing it simply be enough to say well i asked for an evidentiary hearing because everyone would and therefore everyone would have to be granted one there has to be some proffer if it's an ineffective nestl but saying my counsel was ineffective because they didn't investigate so then say that we have to abide by the historic presumption of competent counsel really takes that presumption in turns into a meaningless ritual that is there in every case mary where the record is made what the circumstances by gosh she had defense counsel met how badly the defense counsel appears to have mismanaged the defense in the room that we're going to defend we're going to presume that comp and that counsel knew he was doing it every step of the way even though what he did boggles the mind and yes and  following that line if we're talking about proffers that ought to be made can you imagine any diligent defense counsel who sat by and watched his client supposedly waive an opportunity to the deuce evidence of mitigating circumstances not policing on the record in camera what he had what he done what he would have presented on his client's be have to save his life absent this suppose it waver from his cause and you have that now the case of mind boggles that that wasn't done that that's correct that was not  done i don't think that's required to have been done i don't think strickland requires that or any other any other case that i'm aware of but one of the things that the court i think is discounting i think too much is his ethical obligation to his own client i mean there's a lawyer under the rules of professional that's there on paper but when you read is and i will not call that an argument when you read his final statement to the jury then that does seem obligation faithfully had to flee and this year i'm saying the obligation to abide by his client's wishes his client made absolutely clear he did not want me to get he did not want me to getting evidence presented that's a that's the point i think  knowing i think that the colloquy was extensive and i think it's clear he did know what he was doing the thing is now there's what my opponents have been basically saying is a look at all of this other evidence that could have been put in supposedly thomas didn't know about all of that evidence and i consider that question exactly what didn't he know most of that evidence concerns him you know about his family he knew about what his family would have said you know about his own upbringing you know about the fact that he had been treated for psychological problems in may not have seen the exact reports that the psychiatry wrists had made he knew about his previous station of an infant girl he knew about the incidents with the horses where you're honor in the mind he may have looked at it just like just as a ordinary juror would have looked at it and said this isn't mitigating oh you mean i don't have that right that's really i think if you were to boil down our position to a bottom line i think that's that's fine with me if you want to boil it down to a bottom line all of the things that they say should have been put in if they had been put in would not have convinced a single jury jor not not that they weren't valid point and here where you've got the one mitigating thing that you have is an explanation for all the aggravators the jury may not accept it and then me except to say we don't care this guy is just so bad so dangerous that we want to model here and  one jor idea that's correct the because it only would take one juror to hold out but it's not simply that he could may have found one jor out of a thousand or whatever who may have been a former social worker or a former defense that given given everything that they say should have been put in given the weight of the aggravators it would not have it would not have convinced one person it's not reasonably probable if you take as the law says we have to avarice anger and emotion out of it which i don't think you can do but assuming for a second you can just look at this as a matter of cold or her reason why couldn't one person say in a very dispassionate way this guy has a very sick mind i believe think that the states also have palish decks that executed no pun intended on this guy that's a very rational you'd think a sense to me the irrational view is to say let's get him out here that's this is horrible what he did