ty alper made please the court the jury that decided mark jenkins fate was presented with a misleadingly benign and superficial portrayal of who he was and the life that he had up until the point that he committed the lone violent act of his life that jury did not know that he was an unwanted child who was born premature to a non marital relationship between his mother and a sailor she met that he spent the first six weeks and incubator when his mother had left him abandoned him at the hospital and put him up for adoption they didn't learn that when he was brought home he was abused by his mother who was using drugs and that she was ashamed of him and hid him in a filthy cupboard underneath the sink they didn't learn that his stepfather who was in prison for robbery at the time of his birth when he was released from prison was horrified that his wife had cheated on him and borne a child and thereafter starting at age three subjected him to brutality and regular abuse they didn't learn that at age four mr jenkins was sexually abused by his grandfather on a hunting trip and that this cause severe psychiatric symptoms including bed wetting and encrypt pieces that his ball control problems in his bed wetting stimulated increasing amounts of abuse and humiliation they didn't know that he was neglected and mistreated horribly by his family and that all of the trauma that he suffered in his childhood negatively impacted his development emotionally and psychologically they didn't realize that an early age he was with psychiatric symptoms that he was a severely disturbed child who is long had longstanding depression and was suicidal that as a teenager he made multiple suicide attempts they didn't know that he was isolated and scapegoated and that by about age twelve he abandoned his home to avoid the abuse and lived in the street or in juvenile detention the remainder of his teen years they never learned that he was intellectually limited learning disabled and had substantial impairments to his developmental abilities they didn't know that he was functionally illiterate had no functional academic ability and scored in the bottom one to three percent tile in every academic area they didn't know that despite his genuine efforts to succeed academically he failed miserably and his teachers from the earliest stages recognized that this work was simply too hard for him they didn't know that all of this information was cross corroborated by multiple fact witnesses family members friends and historical records despite not knowing any of this the jury nonetheless recommended a death sentence by the slimmest margin eligible under alabama law tended to had the jury heard even a fraction of this evidence there is a reasonable probability that a different result would have happened with my time today i would like to focus on two issues one the erroneous denial of an evidentiary hearing by the district court and to trial counsel's deficient performance that prejudiced mr jenkins at the sentencing phase in rule thirty two six years before afghans mr jenkins presented evidence that supported a finding it raise an inference that's the standard under alabama law in re perkins that he had an intellectual disability when atkins was decided we promptly briefed the alabama court of criminal appeals although the claims had been denied by the state trial court and the and the matter was pending on appeal at the time that atkins was decided we raised the issue we asked for several types of relief first we ask that the court remain and for further proceedings that is stay the proceedings so that alabama could adopt a procedure that mr jenkins be advised about the procedure that would be implemented through having if you did not want to airing until that legislature that acted you did not want to herring on atkins and tell the legislature and acted we certainly i don't see anything on twenty six we asked the met matter be remanded back to the lower court for further proceedings that's the broadest type of relief that we could have asked for were under alabama law at the time i understand i was asking where you set up something about of evidence  you asked for what did you ask for then further proceedings under alabama law at the time and still sort of the proceedings encompass a broad spectrum of relief including amending the petition so under rule would have required that in addition to having an evidentiary hearing mr jenkins would have had to amend his rule thirty two per petition alleging facts consistent with that kins in order to join the issue we asked for the broadest i don't agree with that the main thing we wanted was a remain for further proceedings so we could be in the court that had jurisdiction to hear this issue the court of criminal appeals does not have jurisdiction over original or amended rule thirty two petitions in johnson in state versus johnson's and state vs smith both cases that were remanded for further proceedings the petitioners in those cases amended their petitions to add the additional claims and there were evidentiary hearings we anticipating that anything that we omitted would be used against us we asked for the broadest relief possible except you didn't specify anything beyond then you specified was a  issue about ineffective assistance of counsel in this case there were numerous red flags that put council on notice that mr jenkins had suffered a horrific childhood that the state essentially concedes in its brief to this court in which the district court found the first red flag was the jenkins told lead counsel doug schofield who acted as lead counsel throughout the proceedings that he had suffered as a child  he had been abused that his father had been a had been brutal to him that he had run away and that he had drug problems early on in the litigation defense counsel requested that he be evaluated for competence and insanity and he was sent to the state hospital for that evaluation he spent three months at taylor hardin secure medical facility where is evaluated by a myriad of evaluators and they filed a report the lunacy commission issued a report almost a year before trial that included many more red flags including suicidal ideation depression anxiety limited intelligence limited education counsel never requested the nearly two hundred pages of records from taylor harden which i think would be a excellent preliminary starting point because those records contained all kinds of evidence and leads on mitigation that counsel never respectfully disagree i think i think this record is now not we don't know because you didn't call him as a witness if he was available we had his sworn fee declaration that has i noticed that they spent one hundred seventy some hours on th know i don't agree will we know from lead counsel who testified without rebuttal that he had regular meetings with stan downie that he knew would stand down he was doing and that stand down he did only those tasks that would counsel directed him to right i mean and that's my recollection is that when their evidence you're hearing some claims of an effective assistance of counsel it's normally the state that calls counsel i think that that's absolutely true we presented overwhelming evidence that there was no investigation done into the mitigation in this case that wasn't rebutted with argument or evidence doug schofield testified that neither he nor downey appreciated the significance or what was going to happen at the schofield saying we didn't interview neither down here i family that's a rare case for myself where the petitioner doesn't doesn't call the lawyer who says it was in effect understand that because he was controlling downey absolutely ok i understand your point and in the part of this that so powerful is scofield testified without rebuttal that about a week prior to the trial is the first time they talked about there being a sentencing phase and it's at that meeting that he directs downey to to do the penalty phase and apparently down he agrees to do that and in his feet after ration there's a notation where they talk about is the only notation out of forty detailed  ies over a nearly two year period where they discuss it and even then he does nothing he doesn't call a witness he doesn't call a family member he doesn't walk across the jail to interview the jail guards he doesn't request records he doesn't ask for a continuance he does absolutely nothing and the witnesses who testified family members friends and to jail guard says the attorneys did not call us for the purpose of getting mitigation but you're so you're separating out sentencing and then guilt phase but but surely you know that this court has approved the reasonableness of pursuing a residual doubt strategy which means that the jury has just heard all of this stuff and in the guilt phase that's still fresh on the jury's mind and that's a reasonable strategy it's only a reasonable strategy if a constitutionally adequate investigation has been done in order to support that strategy under william versus taylor they they raise that same issue and this there's sense that there was a residual doubt strategy except it was manufactured for purposes of appeal neither schofield nor downey at the sentencing phase raised residual doubt as a defense there's not a single entry in fee declaration about that being a defense he didn't research jury instructions he didn't point the jury to any facts in the record that would suggest residual doubt he did nothing there are two jail guards who came in at rule thirty two to testify about what a good model inmate he was if there was a residual doubt theory that they're advancing having jail guards that say he's a good good inmate that he's made if exemplary adjustment to incarceration would certainly support that as would the good character effort of evidence that came from all quarters including taylor hardin there are nearly two hundred pages of taylor hard and where it says mr jenkins is pleasant respectful co operative for three months he never had a single write up even the state's expert carl kirkland found him pleasant and forthcoming and respectful if there was a residual doubt theory which there wasn't if there was a adequate constitutional investigation there was no reason not to present this compelling evidence in support of that but what we have from downey is talking to the sole witness in the fifteen minutes between the death of the guilty verdict and the start of sentencing and it's not true it's not contested that he had never spoken to lani seal he speaks to him for the first time in that fifteen minute interim and he but he previously asked schofield to examine him he said you did a good job a trial why don't you do this and schofield says get over there and question him and then what happens at the penalty phase demonstrates there was no preparation and no theory in his opening statement which consists of eighty three lines of text only thirteen refer to jenkins or mitigation because there there just is not and they shot themselves in the foot by not doing any investigation he's got almost nothing to say he reads the mitigation statute into the record thirty lines of text almost three times as much about mitigation during the questioning of lani seal it's clear he doesn't know anything about about jenkins other than this very brief time that he worked with them in california in the few weeks they lived with him in alabama so unfamiliar as a he doesn't even know how old jenkins is at the time of this case age at the time of the offense was a statutory mitigator mr jenkins was twenty one low hanging fruit and he asked him how old is eans i don't know and he asked him if you had a guess there's an objection and loni seal blurts out twenty five he gets it wrong because he just doesn't know in his summation which is four and a half pages one hundred and eight lines of are only three lines twenty two words that refer to mr jenkins or mitigation he spends one hundred twenty one words or seventeen lines on the bible seventy one words or eleven lines a news media and forty six words sixty one lines or six lines and void where he had no facts in order to give this jury reasons not to impose the death penalty because there was no investigation done there was no residual doubt defen these attorneys were simply inadequate in the in the face of that a jury who had only heard one thing about mr jenkins that he committed a horrible brutal crime still voted ten to two in favor of the death penalty under alabama law at the time that was the minimum verdict that you could have and still have a death recommendation what the jury had was this misleadingly benign and superficial image of mr jenkins but the true story of his life which is not disputed karl kirkland the state's expert conceded that he had a brutal childhood he was regularly abused and neglected and this neglect and abuse and the horror of his childhood affected his development both as a child and as an adult that he had serious mental illness had a very very early age and that is cross corroborated by the witnesses and the records they over looked really easy to get information that could have been mitigating in addition to portraying this horrible childhood the two jail guards who testified said he was a model inmate one said he was the best inmate he ever supervised there was excellent good character evidence he had no history of violence no prior history of violence he didn't have any prior substantial criminal history which was another statutory mitigator in alabama at the time they didn't research that they were not prepared and they didn't present that evidence to the jury they simply ignored the low hanging fruit in this case the low hanging fruit was readily available doris wagner who testified at the rule thirty two hearing was more than happy when asked by taylor harden to give information that taylor hardin records show numb leads on mitigation there's names of witnesses that they could talk to there are contact information and there are about twenty different mitigating factors that any reasonable attorney would have pursued but these attorneys didn't even know enough to ask for the taylor harden records which were in alabama at the time they didn't get them and they didn't pursue that and it's only because of their lack of experience and ignorance that they didn't pursue this mitigation investigation doug scofield testified that about that without rebuttal he said two things one we mr downey and i did not appreciate that and mr downey admitted to him again without any rebuttal that he didn't do any investigation no deaths and can be upheld when there is a constitutionally inadequate investigation and you have a ten to verdict where the jury if given just any amount of mitigation would've likely voted differently i'd like to reserve my remaining time for  my name is henry johnson i represent the respondent in this matter the state courts reason let me be reasonably found the counsel to foreman said the penalty phase was not deficient for at least three reasons first as has already been discussed the petitioner failed to call stand downing we have no idea what was taken by state what was done by stand downie or what actions he may or may not have taken of the state of call stand down and that's not the state's burden your honor in this in the course of the silent that's i know that's not the burden but it's not unusual for the state because to call counsel to the witness stand is and i mean i suppose it's happened in seventeen years i've never seen it done your honor but i would point the feedback mr down it's the vouchers on the record they are absolutely in the right wing here on alt well we would know what he did by looking at his feet out your wouldn't we we do know some things about what he did from looking at us from about your although i will point out that this case i so old back in eighty nine and nine hundred ninety one that there was a statutory cap at that time so we don't know if he put everything down because he exceeded a statutory cap of a thousand dollars for out of time out of court work so for all we know he could have done a lot more than seventy one hours and not put it down on his floor because he would have been paid for it anyway but we also know that scofield testified that there was no strategy that existed at all they didn't they didn't even sentencing phase strategy scofield also conceded on cross examination however your honor that he was not aware of what preparations danny had made for the penalty phase and when he was asked point blank on cross examination your honor so whether it's ok so so the state's position is for all we know he could have conducted a reasonable investigation into his background is that the state's position for all we know for all we know because of a silent record of the record a silent counselor presumed considered that evidence that was presented at the world thirty two hearing they found it absolutely incredible grossly exaggerated it to be contradicted by well let's just take real quick four of the wi we've said before and the supreme court has said before when there is compelling and powerful mitigation evidence that's not presented to that europe during the penalty phase of the case that could make a difference and establish that does take or finding was reasonable the state courts the state court and the state circuit court witness these had the benefit of observing the debian or in the testimony of these witnesses and found that they were all incredible and persuade what will happen or jurors to get a die for that parole sentence so what would happen if the if the verdict was and i'm at three their recommendation if the verdict was ninety three the jury would have been pressed on it twice and if they continued to come back with ninety three and  jury would have been impaneled that's that's alabama law but i think it's important to look at the exact evidence that was presented that my friend has referred to that his grandmother testified doris wagner she testified that she was unavailable to testif as trial his brother michael jenkins testified that he had no curiosity or concern about what was going on with his brother at the time of this case his cousin tammy peds grossly exaggerated the abuse that he suffered she contradicted herself she contradicted other witnesses and she was found by the state court finder of fact to be incredible one more betty deal of a guy his cousin who had only seen him twice over the course of his entire life admitted that she was there soley to get him off death row and woods key is if all of this abuse happened there are no records on that there are no records my friend would have you believe that this gentleman march incans went to school every day and soiled clothes yet nobody at any school he attend noticed that there are no records to support the abuse from medical police school otherwise but interestingly there are school records showing that he had ginger vitus and a rash that's pretty compelling that he didn't have the use that my records and that those are and they were buried in there or they were contained in there so there's evidence supporting the district court's finding that he does not qualify for relief under adkins well no that doesn't support a finding that in two separate evaluators wanted aged twelve and one aged fourteen found that he was that of average intelligence one of him a learning disability yeah that he had a learning disability and that dyslexia that's correct your honor that's what he was found to have at that age and then he was evaluated by the lunacy commission at taylor harden and three different psychiatrists evaluated him and they came to the conclusion that he was borderline and then the next time he was about i waited was by dr kirkland at the rule but was there any consideration of the perkins factors well there was never an opportunity to have that done your honor because well i take that back the court of criminal appeals did consider the perkins factors in two disabled to go back to downey there are some things we do know was that what was his sentencing what was mr downey's sentencing phase dravet well i don't fortunately wish i could tell you but i can't because he wasn't called in so we don't know but what we can discern from the record you can't look at the transcript of the penalty proceeding and determine what his sentencing phase strategy was all you need to do is to look at the evidence that was submitted that the penalty phase and its arguments to the jury to determine what a sentencing phase strategy was but yes your honor we can do that and his as the state courts reasonably found under ed it was reasonable doubt or residual doubt or lingering doubt or circumstantial evidence and also the jenkins was a good guy based on the extensive testimony not cursory testimony was the go to seal was the evidence of his guilt at trial the overwhelming  that all based on circumstantial on the testimony that he left the omelet shop with the fact that that is correct your honor but there were multiple witnesses over the course of the night two of him all but i mean identified him at the omelets i'm going to read a sentence from alabama supreme court drinking versus state the evidence overwhelmingly pointed to the guilt of the appellate so the evidence is overwhelming right the state would agree with will also point out that there was a reasonable doubt defense and it was three fold it was met it was multi layered schofield focused on reasonable doubt as to identity he focused on reasonable doubt as to insufficient time to make commit this crime in the matter that was asserted by the state and third insufficient evidence as to the robbery in the kidnapping facts it seems especially crazy to rely on a residual doubt that fence evidence was overwhelming when you got this compelling and powerful mitigation evidence that was presented that the jury well that goes back to the fact that the state courts reasonably found that that evidence was not compelling or powerful they found it exaggerated and incredulous we could find that that's an unreasonable determination on the facts i mean that's what we're here to do right you certainly can your own but you go back to downey briefly it's important to see what we put what we can discern from the record of what he did because there are certain things that he didn't fact do he had at least ten meetings as the court of criminal appeals found and actually i counted seventeen meetings with jenkins at the jail for over twenty five hours of discussions we don't know word of what they discussed he was also in contact with jenkins his grandmother in california the same woman who testified and ruled thirty two that she couldn't testify that is dropping so he may well have known that and there's another entry discuss how much to tell his family so the evidence from the notations are that he was in touch with the family even if he didn't write down i spoke with grandmother on this day although in fact he did write down i spoke with grandmother on this day he may have spoken with her on other occasions as well speaking of that how do we deal with the one seventy one seventy one discrepancy that is a good question your honor at my only thing i can say is i think it's a typo and again i would go back to the seventy one hours again and we because he wasn't called we don't know if it was even seventy one hour over two year period it was over when i was over done now almost two years that's correct your honor and he moved for  talking with jenkins that he was talking with singh and his grandmother that he was talking with jenkins family members and so for all we know he knew these were witnesses he was considering going to california that's correct that was one of the things that he was thinking about doing it for all we know he knew about the witnesses who testified in rule thirty two he knew about their wild allegations that the state court found incredible about eating feces and so forth and he said i'm not calling these people and instead he called loni seal who did know him very well  don't know whether or not he read the the commission's report we don't know if there are lots of the doctors we don't know if you read the lunacy commission report and we doubt that's that's actually an important point to find because that would be that would be reasonably competent assistance if he knew about all this powerful and compelling mitigation evidence and said no i'm not going to present that to the jury instead i'm going to rely on reasonable doubt that's an overwhelming guilt case well your honor if he did that and he's even more in effect at this counsel well it's quite possible since we don't know but that he knew about these allegations from the rule thirty two witnesses and knew they were blind he knew about all those powerful compelling mitigation evidence and decided not to use it and are allowing a reasonable doubt that that's a case where the evidence is overwhelming if given that the state courts were there and observed the savants and found it's meet the dogs act opposite i can agree with your honor on that you've talked about it for the mitigation evidence the childhood investigation that the state court found that the witnesses had exaggerated what about the other piece of the what what the other side is arguing is going to be compelling mitigation behavior in jail can you speak to whether that is in fact compelling medication evidence honor and i would point out that there's a key note in the record the tail hardened records which we don't know whether downey saw the taylor and records or not but i'd like to cite the court to the record volume twenty five pages five five seven and five seven two in the taylor hardy just what five five seven and five seven to your honor its volume twenty five the taylor hardened individuals were informed by the chief jailer of the county whose name was alton fuller the jenkins can appear violent in start cursing so and can appear moody among other things but the key words i would take out were chief jailer alton fuller and the ta records said that he was violent and cursing so if they had called the witnesses that they said they should have called with the state out of called chief jailer all of them floored to say oh no he wasn't we have to assume they would have ca and weighing the prejudice issues we have to assume that all of that evidence that's around are favorable to the final and unfavorable including cross examination was in the pot and that before  yes your honor we do and again we unfortunately don't know if downey looked at the taylor and records i see we did the record silent so we have to presume he did but assuming he did he may well have seen chief judge jailer alton fuller's report and said i'm not going to call i'm not going to get anywhere near these jailers and that would've been a reasonable decision on his part if there are no further questions i'm happy to rest on my  judgment of the district court thank you are on are i think the prism of this of this evaluation you put your finger on it which is that both attorneys were deficient scofield was deficient in a prejudicial way because he didn't appreciate  what mitigation was and therefore he did no investigation what counsel let me say this we don't know whether or not the taylor harding records were read we just don't know we do know how do you know they were not read scofield testified about that rule doesn't doesn't know whether downing look at them he said they never collected the taylor pardon records he said we never reviewed those we have the detail is that this record is going to show as a matter of fact conclusively that that downing didn't do anything that schofield didn't tell him to do and said schofield didn't tell him to talk to the doctors or anybody else control cannot cannot i'm talking about talking to the doctors before the trial the tale harden records contain correspondence from taylor harden to mr schofield to mr downey yet saying we're doing an evaluation if you haven't passed then after the evaluation we don't know that during the evaluation they were doing a competency evaluation and they if they solicited doug scofield and stan downey to provide information i understand that my question is after it was done and they reached their opinion a very detailed fee declaration everything that the government is saying as evidence is pure speculation attorneys testify for the attorney general all the time i was called as an expert witness in a rule thirty two hearing not two years ago when when the attorney general called the counsel to rebut the allegation of ineffective assistance of counsel stand down he was readily available for them and if there was rebuttal i presume that they would have presented it but what w in without rebuttal was that doug schofield took responsibility for the entire case until four days i understand for the sentencing hearing and that they did none of this it is documented we have the witnesses who said no one called the u including the jail guards who are right across the street and they had contact with ok it's very very clear that that mr downey didn't do anything even after those four days he told schofield this is in the record that he didn't do anything before that and his performance at the sentencing phase is clear that he didn't do anything for all those reasons we would ask the court before you said i'm curious to know your response to the state's argument that they could have done declaration so so detailed there are forty entries down to five minute increments there's one that the conversation he had with mr wagner that happened on october eighteenth it's clear it's about a guilt phase issue and it's about an identification that was made it was twelve minutes ago you can exceed the requests are that that that's right and they could have done that but the fact that he didn't stop keeping track of it when he met the fee cap confirms that he's keeping copious notes about what he's doing there are numerous references in here into the meetings that he had with mr jenkins when lead counsel was present thirteen hours i counted them last night there were five meetings comprising thirteen hours and schofield testified we didn't talk about mitigation you know so so the speculation that maybe all these conversations were happening about mitigation schofield says that's not true but even if it was true you would presume that after learning about this if if they were providing constitutionally adequate representation they would then seek records there's not a single reference in this feedback aeration to requesting historical records these were easy to get the taylor hard and records make references to mitigation witnesses and other records that they could have pursued they didn't request to review the taylor hardin records they didn't ask for his birth records his school records his juvenile delinquency records the department of social service records all of those things were introduced by the petitioner in rule thirty two and corroborate what the witnesses said there were inconsistency nami about the relevancy of the testing and that what it was twelve fourteen years but i we submit that those are not  q tests they were screening inventories that were done in a group setting they're not the judgment test they're not the way they're not the stanford benet was that shown the that's shown in the thirty two hearing no that was not an issue that's coming out of you you said wilson vs sellers we don't look through what the court the court said to find better reasons this wasn't raised by the state before and so there was no reason to it to address this ok but wilson versus seller says when there is a reason given by the unreasonable strict judge sided that as evidence in the rule thirty two hearing ok that's where i found that that that's right but the state court did not rely on that wilson versus seller says you were you limit yourself to that decision reached by the state court and they