let me call the case of pittman versus the secretary of corrections and we'll be happy to hear from counsel for the  the court counsel for the record my name is martin mclean and i'm here today representing david pittman on this court granted a certificate of appeal built the on two issues so there are two arguments in the brief the first one concerns penalty phase ineffective assistance of counsel and the second one concerns the ruling not to allow the defense to present evidence concerning another individual's confession to the nurse first as to the penalty phase i see claim the purpose of of the strickland standard is to make sure that an adequate adversarial testing occurred and produced a result a reliable result that we can have confidence and i just want to alert the court that florida law has changed that we're in a unique circumstance we're reviewing what happened at the trial at the sentencing at the penalty phase and the effectiveness of counsel in a proceeding way or the jury returned an advisory verdict thirteenth the legislature passed chapter two thousand and seventeen dash one and it does apply retrospectively to anybody who gets a recent right so for example the first report just ordered a recent thing for james car mitigation it just simply reviewed what the lower court the circuit court had done found that it was supported by evidence and front let me ask you this question something that was just leaked well i mean many of the details were new i mean it's sort of like you know i know i know you have you have been arguing about detail was an argument about corroboration  trying to success but my question is were there any categories of that that instead were new like for example that there was mitigation acts and there hadn't been a word about mitigation acts at trial or at the penalty phase i mean i'll just sort of go through the things that popped into my head i'm not sure that briggs ample dr di indicated they had been told him he'd been sexually judge didn't accept that and no one talked to the other family members to learn that brother michael would confirm or brother bill would have confirmed that and talked about the sexual abuse that was going on so that didn't get presented all the know what's interesting about it is in the collateral hearing when dr di was called again i cross examination he was asked this question this is now after everything old and everything new was in front of him and the question went like this quote is there anything new that you would change about your opinions you gave during the course of the trial he responded no it might be a little additional in terms of the corroboration i have and so forth but i think it would be essentially the same so you have the testimony from the shrink saying look i said what i had to say i propounded the opinion i thought was relevant about my diagnosis of his mental condition and his disability his organic brain damage and a whole variety of things except tension deficit disorder but really my opinion is the same there's some new stuff maybe that would have been c nature he doesn't use the word we would use his lawyers cumulative but quote it would be essentially the same so there's nothing new that would have affected his opinion right at trial because it wasn't corroborated it wasn't included in the sentencing calculus i don't i mean to the extent that it his his opinion them in those school records were real and not presented and the judge relied on the absence of any evidence other than what dr di said to reject brain damage  arguing then that the sentencing court erred by requiring corroboration i'm not and i'm not are arguing that i'm up i'm saying that the defense attorney had the corroboration or could have gotten it but are you saying that th difference that i see it undermine confidence in the result and the florida supreme court tells us you know and it's their determination that we're looking at after all isn't it well they actually they say among other things that pittman claims that the fans council was ineffective in the following ways and there are two in failing the present for addition a witness parker michael pittman jean wesley until he woody to attest to substance abuse and his lifelong afflictions and two in failing to elicit additional information from three witnesses tammy davis william pittman and dr di who testified it issue the issue was addressed at the evidence rehearing he is what the trial judge says based on the record we conclude that pittman is fail to show that the post conviction court erred in denying the claim the findings are supported by competent substantial evidence in the court properly applied the law from prejudice i mean i thought that the trial court was just saying that there was no obligation to present evidence that was cumulatively and i thought there was some sort of reference that didn't show that would make a difference  but what you've got to show us is that the florida supreme court's determination was an unreasonable and undervalued reasonable jurist on when reviewing this record could have concluded a and we deny it we would still have to make the same analysis and given the same deference wouldn't what they're not obliged to explicate in detail their rationale are they so long as we know they ruled on the by the federal court if the state court has not reviewed the matter that's one thing but if they were view the merits and don't propose to give you a detailed explication of their rationale are you saying they the difference that i'm trying to get at is it is one thing to say on the one hand you've got a b c and b on the other hand you've got x y and z and reach no determination at all and quite another thing to say we weeks the merits you lose on the merits thank you goodbye and they don't give you the or they don't give you the explication of the rationale in that one instance there's no determination in the other instance there is but they just haven't explained the rationale perhaps they should seems to me courts ought to be giving reasons for its rulings but if they simply will on the merits it dixit here it is take it or leave it and tell me why tell me why the performance why he violated his performance and the reason i raise it is look to me at the first cut and i read the whole record here they interviewed a whole bunch of folks they started the penalty phase examination really early on and how you had an experienced criminal defense lawyer in the case they put nine witnesses on the stand the transcripts run some two hundred fifteen  pages d struck me as a very sound witness good witness looked to me like they put on the mother who laid out just a horrible explication of you know his his childhood they put on other folks to say a variety of other things concerning his his background why was this baldly insufficient this was unlike the last day they found the witness stuck one witness on the stand and left it at that was it this was a pretty thorough kind of this is not that case this is this case guy and this is their this and in this case the problem is he had medication he didn't present he didn't the lawyer had evidence that he could have obtained to provide more detail and corroboration for some of the testimony if not all of the testimony that dr di and some of the other witnesses provided  because he didn't obtain in present that readily available testimony his performance fell below an objective standard and because the trial court's sentencing order was predicated in part on mr pittman not having been able to establish certain mitigating circumstances due to lack of corroboration there's prejudice yes and this court not only is bound to accept the facts found by the florida supreme court you have to not what the sentencing judge found did he find him not credible as a witness generally or not accept his findings he actually specific language he used is he rejected the testimony because there was no corroborating e ok on everything on the statutory mitigating circumstances specifically and he didn't accept it and as to the non statutory mitigating either because there was no connection to the case could you address before your time is up the the second issue a bit yes are you saying that are you saying your brief that in the direct appeal to the florida supreme court mr pitman expressly raised a federal constitutional cited to chambers versus mississippi yes and obviously what the florida supreme court said didn't address chambers at least not explicitly is it your contention that we get down over review of that claim here the evidence against mr pittman there was no physical evidence linking mr pittman to the crime there's no physical evidence linking the other two individuals to the crime however the state presented evidence that mr pittman it had compelling is givens who was the other individual with him in another incident had stolen a motor from a boat with another person and then poured gasoline w givens and watson's fingerprints and the court wouldn't allow that of course all of this happens in the middle of the trial is when this is a surfacing and so there the defense is trying to present having to investigate and it does have an effect on how the trial proceeds because the defense had intended to focus on mr pitman's ex wife as the potential murderer and held him back in the cross examination because they were trying to figure out this other situation even though he made reference to it in his opening statement and i come back to a question that judge jordan asked you earlier and that is whether we are to take what the florida supreme court did on this claim this hearsay constitutional claim was actually decided on the merits or not but the florida supreme court when i read what they wrote  in round two i took it to be a merits determination because they say that and i want to reach you the language didn't ask you to tell me how i could read this is not being a merits determination they lay out the claim i'm reading now from the second opinion they wrote a collateral one eighteen southern report a third series a ninety s then they repeat the totality of what they said in pitman one and then they say the following pittman asserts that this ruling is contrary to united states supreme court precedent and they cite two cases homes the south carolina and williamson versus the united states which are due process cases which constitutional cases and then they say this case this claim however is procedurally barred citing p about and which have been previously decided on the merits in those proceedings are procedurally barred in the a b s petition i'm not saying the claim is procedurally barred here i'm just asking because it's not right i'm simply asking the question of how i can read this in tandem with what they said in pitman one and not conclude that they ruled on the merits isn't this the merits the terminations when they say claims raised in a a b s petition which were raised and a prior proceeding like on direct appeal and which have been quote previously decided on the merits in those proceedings are procedur term aren't they telling us as clearly as they can we decided this soccer on the merits in round one and as far as we're concerned given our state rules you're procedurally barred from raising that's what we're trying to get at did they not decide the claim on the merits and if the answer is yes then i can review it to no avail i have to give it some deference and ask whether this determination on the second issue was contrary to or an on reasonable application of supreme court law that's what i'm trying to get at how do i would view the florida supreme court school i heard you just say in response to a question that judge jordan has you that we should be reviewing it did know rather than through the lens of the depth and if they had a merits the terminations it seems to me i have to this is clearly an ad per case and the review of what happened in the state court is going to be restricted by even if we looked at it in terms of feedback here sorry  when his wife decided that she was going to divorce him and when he was released from prison in january one thousand nine hundred there were ongoing trouble keeping him and his soon to be ex wife who had difficulty getting access to his children and he had made threats to her that he was going to turn the town of moberly into a battlefield shortly after he was released his sister in law filed a criminal charge against him alleging that he had committed statutory rape against her five years before it was it was in it the mother in law about the sister in law that's quite possible ok yeah i well i thought it was i thought it was the mother who claimed that he had sexually abused remember that from the florida supreme court opinion but maybe i'm wrong to know and i'm sure the courts right you know she was living with with her parents and i'm sure that mr pittman drew the conclusion that because the fact this family was all one unit they were responsible for trying to put him back into prison so his he had a motive for wanting to attack the family first of all as to punish his soon to be ex wife and also revenge the actual crime scene and the trial court in its sentencing order found these facts to be particularly compelling he the murderer pittman showed up at his father's house and his father lived a few blocks away from the old  residence he had not pittman had not lived with his father for quite some time but he the night before the murder he shows up at his father's house the middle of the night he left through an unlocked door nobody saw him leave his father's house when he goes to the knolls house and we know this information because he confessed to carl hughes who was a inmate with him he cut the phone lines talked his way into the house killed bonnie knowles the twenty year old stabbed her to death cut her throat and countered the mother out in the hallway stabbed her to death and then encountered the father who was at that time standing by the phone it's a reasonable inference that he was trying to call for help and he stabbed and killed him afterwards he set the house on fire stole bottles car and made his getaway all of this happened before three forty am because we know that there was a report that there was a flash on the horizon by somebody at three forty am was her car the toyota yes funniness car was a toyota so he had to have secured the keys before setting the house on fire these facts impressed the trial court in its evaluation of the penalty phase because they the defense sought to establish that the defendant was acting under extreme emotional and physical or mental disturbances for want and the trial court felt that someone who is capable of engaging in that kind of deliberate behavior was not suffering from that kind of difficulty  you may be right that at the end of the day that's far too much for mr pittman to get over but as i read the opinions below the state trial court opinion on the collateral petition the florida supreme court's decision the district court's order nobody has really addressed mr pitman's contention whether it's right or wrong that the evidence that he says defense counsel did not obtain in present was critically important because it provided the sort of corroboration at the initial trial court found lacking and it seems nobody has performed that analysis i mean nobody has said he's right about that or he's wrong about that and even if he's right he loses because everything else was so aggravating in nature but nobody has seemed to do that analysis about corroboration and at least at first glance the argument makes some sense as a at an abstract level because if a judge says ok i've heard this evidence but i don't believe it because there is no corroboration and the evidence you say should have been presented provides a corroboration you start thinking well maybe on that point there's something to it could you could you address that issue yes i think we can dispense with it fairly quickly the problem is let's  least give me your thoughts about it and what my thoughts are this we sitting at at our position twenty years you know this sentencing happened in one thousand nine hundred one you know how many years after after the sentencing we know exactly why the trial court chose jordan's question is why did the district why did the trial court here reject mitigation did he rejected because of some corroborative information that was out there and wasn't used or did he rejected because of the nature of the circumstances here that reflected a willfulness a deliberateness a planning that of war with the notion that these other circumstances made him do it why did the trial court if you read his his statement reject the  the mitigation theory because it was a persuasive but why did he find it wasn't persuasive if we look at how was it because there was nothing to corroborate it or was it for some other reason it was not strictly because it was there was no corroboration the court found even if we look at the sensing order the court found in the sense in order that the way that the crime was committed refuted the mitigation that the defense  of conducting this kind of a detailed planned homicide to the extent that he almost got away with it you know there it is my posing counsel is correct there is no evidence linking mr pitman to scene the evidence comes from the fact that he was observed with bonnie knowles carter later on in the person who stole the car had to have been the one that committed committed the offense so that that's that's the reason why  rejected this medicaid while in your were you what he does what the trial court said yes and as to the mitigating circumstances the the trial judge references that there were three first degree murders she references that the defendant visited his father's house on the eve of the murders the first time in months he had been to the father's house that he left the house when outside door he walked a short distance in the early morning to the victim's house and there he cut the telephone lines outside of the house he entered the home and systematically killed three people he then proceeded to pour gasoline about the house and then in the yard he set the fire he secured the keys to the car he took the car and burned that too later he says the defendant's actions and all othe street circumstances considered show a deliberate conscious plan to kill and avoid apprehension they do not indicate a person functioning under the influence of extreme mental or emotional disturbance in regard to the new influence of alcohol other than the expert opinion the record does not reflect that it had been a factor in the commission of the murder that he says and this is what i really want to get at except for the solicited opinions of the defendants expert that the defendant's capacity to conform his conduct to the requirements of the law was substantially impaired this mitigating circumstances is unsupported by any other evidence in the record to the contrary the facts revealed and then he lays out again  the nature of the killings the effort to destroy evidence and to effectuate i get away and stablish an alibi which he says were the product of deliberate thought then he says the expert has offered an opinion as a mitigating circumstance that the defendant suffers brain damage this is item three i'm looking at other than this opinion there exists and i think this is where the issue has come up other than this opinion the trial court says there exists no corroborating evidence to suggest the presence of this damage or its degree nor its actual relationship to the murders then he says there was additional mitigating evidence offered about hyper activity that he may have suffered physical and sexual abuse as a child that he was an impulsive person with memory problems  impaired social judgment and then he says taking all these mitigating circumstances in a light most favorable to the defendant the court finds they have little if any connection to the murder the record speaks clearly of an individual that went about the killings and the destruction in a deliberate methodical and efficient manner etc etc etc but what are we to make of this statement that's the whole context of what he said i don't want to rip out of context a single shard or expression i want to look at the totality but having looked at the totality this one point where he says the expert has offered an opinion as a mitigating circumstance to the defendant that the defendant suffers brain damage other than this opinion there exists no corroborating evidence to suggest the presence of this damage or its degree nor its actual relationship to the murders what are we to make of that comment and is there anything in the collateral evidence that would have provided corroborating evidence to suggest quote the presence of this damage or its degree or its relationship to the murders that seems to me to be the heart of the question or at least the heart of the claim raised by mr pitman here in this hey b s well i'm having a hard time with this because i don't see the coun l needed to do more than what he actually did he put on the test going to be had from his expert reasonably anticipating what was going to happen at the penalty phase he put on this testimony  expert now the fact that the trial court accepted or rejected that expert this is not something counsel can know in advance nor is it the measure after the fact of looking at it nor is it the most i think the question is did he rejected because there was no corroborat evidence or to be rejected because it was at war with the nature of the crime and how it was committed i think that it was because it was at war with the nature of the crime in the way it was committed it doesn't make sense that someone with a degree of  brain damage specifically would be capable of committing the crime in the way that this crime was committed but then you would have expected or i should say we i would have expected an order saying ok all except the expert testimony that he has some emotional disturbance that he has some brain damage but given the whole record performing i don't find that those issues are causally connected to the murders in this case then you're like ok he understood it he said they're not causally connected they don't excuse the conduct and that's why i'm giving them  the aggravating outweigh the mitigating i'm imposing sentences of death that would have been a different sort of order i guess hearsay it wasn't necessary no i think what are saying it may be a misapprehended is that he said just that in the following paragraph under for taking all these mitigating circumstances in a light most favorable to the defendant the court finds they have little if any connection to the murder the record speaks clearly of an individual who went about the killings and the destruction of the evidence in a deliberate methodical and efficient matter to such an extent that detection was nearly avoided but for late picking roses early one morning who happened to see the defendant running from bo knowles burning car the case might never been successfully prosecuted the record reflects blah blah blah he cut the lines in all of this your argument is that's why the court rejected what yes or dr di said not because there wasn't additional cumulative evidence that said in more detail what the witnesses the plane the petitioner called said in the first place that's your that's why that's your position let me ask you w matter anyway given what the florida supreme court said what am i judging am i judging the trial court's determination here or am i required to look at the last and highest court of the state which if it ruled on extent that they covered it to the extent that they addressed it on the merits that's what we have to look at we don't really need to look through to one of those the trial court that unless there's an absence what about the second issue we turn to the second issue which is the position my position is that the nova review is not the correct direct review here and we know that the trial court addressed this on the merits the trial court addressed this on the merits because if we look i have here in front of me and i know the courts are familiar with the record but let me just direct you specifically to where the trial court looked at this this is in think it's a eighteen volume eighteen of the trial court record and the hodges issue begins being discussed on page three four nine for the record and more than sixty jury trials capital jury trials under his belt spent there's more than one hundred pages of transcript here talking about this particular issue and ultimately what the tribal court did was it found that applying chambers the facts of the case chambers the trial court said i don't find there is sufficient corroboration here to justify admitting this testimony that was the ruling of the trial court now we know that when the four supreme court  aleck's not to address a constitutional issue that doesn't mean that it's ignoring it you know the federal courts have never said that the state courts need to write their opinions in a certain way or else we're going to reverse that that we've never said that marcus and i may ultimately have a difference of opinion on this issue but let's break it down into two quadrants yes if all you had was the florida supreme court decision on tareq review and nothing at all had been said on the opinion on the collateral review do you think the johnson presumption would have been overcome johnson presumes that if a claim is presented but the state court doesn't assume that the state court nevertheless rendered a decision on the merits but that's a rebuttable presumption it is right that's what johnson says so if all you had was the florida supreme court opinion on direct appeal would you think that the johnson presumption has been overcome or not my argument we will be more difficult in that circumstance right because there you've got an express federal claim right and all they're talking about is a state  right right so so your argument is based on or look or mostly based on what judge marcus said which is that when you get the further explanation in the collateral opinion you can infer that the florida supreme court addressed that on the merits correct that you'd have a much harder argument without the collateral opinion you could say well they raise chambers at the bridge they brief the constitutional question but you couldn't tell that the supreme court of florida had addressed th heard all they reference is the state law concerning hearsay so you have to say you have to read the two imperative materia and when you read the second one it's hard to when the supreme court of florida cites a case for the proposition that it's procedurally barred where it's been pretty previously decided on the merits that tells you an ambiguously out of their own mouth that they've decided on the merits i believe that it does therefore my position would be that we don't have the nova review here we have to give deference to what the state court did and the state court concluded that there was under james there was not enough corroboration here corroboration if you want to kill there are the kind of corroboration that chambers talks about both chambers and washington versus texas both of those cases deal with evidence where there was there was direct evidence linking the individual at issue there with the crime in washington we have mr washington who is charged with the shooting and being an accomplice to shooting and killing his rival mr fuller it was the one who made the statement that he sought to introduce later fuller was with washington when he shot the man fuller was the shooter and the testimony that they wanted to introduce in washington would have been i was or would have said i was with washington and washington tried to stop the shooting  that's evidence linking fuller to the crime present at the crime corroborating the fact that fuller was the shooter and washington was attempting to stop it similarly in chambers we have direct evidence linking gable macdonald to the offense we don't have anything like that here what we have is as the state court the prosecutor in the state court level said these are all peripheral matters the fact that we have jesse watson is  has a drug problem the fact that he may have committed burglaries in the past that he may have been with somebody who had a history of of burning things to destroy the evidence these are are these peripheral matters not leaking or anybody at all to either one of these men to the actual offense itself i think the state court was correct in finding the chamber's does not mandate that this evidence be introduced in the state court was correct in saying that it should be excluded part of the district court rationale when she reviewed the baby's petition a very short part of a rationale was that the state of florida state here's the real talks about availability and that if the declarant is available then then you don't get the special provision where you go for and you can then use the hearsay is it true then that the defendant at trial did not try to put mr watson or mr givens on the stand to testify he was partly from doing that they never got to that level they did have had that tell me how that happened what happened was they investigated they took mr watson and mr gibbon they put took the depositions took statements from them outside of court when they sought to introduce that court the state court said you can't introduce that because it's not individuals never actually called they went through anybody through the people who could testify about the similar record in the papers and you could testify about the burned but not only through mr hodges hodges the one that he wanted to call because hodges the one who had actually said those things had he would have had the ability any chosen to introduce evidence of the circumstances that he thought would corroborate hodges but did not even attempt to do that he could have called as he i mean you could have called watson could have called givens but honestly if he had done that those witnesses both said i didn't say what hodges said that wasn't part of it that givens had pot market face just as did the defendant let's get it in there is a witness who you know certainly he didn't try to attempt to have the witness indicate whether or not a photograph of gibbons looks similar to the person that she saw run away from burn it and try to do any of the kinds of things you'd normally try to do not to throw suspicion on somebody else right if he did the barber davis is the witness that you're talking about she was the one who live nearby where the burning car was observed and she's the person that said in court that's the man mr pip courtney preclude him from doing any of those no no he could have done that he was not precluded from doing that the district court was wrong was it not to apply  she was procedurally barred from reviewing the claim and then said but even if i'm not i'll go to the merits i could be mistaken as i read it she said she was procedurally barred and that strikes me as just opinion there is no reason why this court could not consider the constitutional dimensions of what was presented in state court at the appellate level there was a procedural bar applied as to holmes versus south carolina because as the court know that i understand yes but that would be a bar that would just be an application of that book but it's not a procedural bar it's just you can't rely on holes because of that ball plies for holmes post dated everything that happened in this case but it's not  it's not a procedural bar in the sense that you didn't follow state law in the way you had to present the claim at the time it arose correct the district court here at least in my opinion seems to that a little bit of everything talked about state evidence rules then moved to constitutional marriage that a little more senior will bar and at the end of the day rejected the claim in toto so great but to the extent the district court rejected the petition on the grounds that it as a federal hate be as collateral reviewing court was procedurally barred from reviewing the merits of the claim that's just plain wrong isn't it i think it is ok i have to agree that the we have to look to what the state court did the state court did apply a procedural do that's the extent of my argument i don't have anything else unless the court does thanks very much thank you your  mr pittman contended he was innocent and mr watson and mr gibbons or somebody else that it didn't know who he didn't do it it the fact that it doesn't fit his mental condition doesn't fit the facts actually sort of supports the second argument the need to present the evidence about their people and in terms of that that was part of the brady claim that a seal was not granted on the state misled the the defense wanted to do that one of the have a fingerprint checked i think because there were fingerprints on the car the judge wouldn't let them do that there was a means of doing that into just introduce something about somebody else it if you need it you need the fact the person had been fast to his stepfather to make it relevant and certainly had missed the i thought and you can help me with this and maybe this is where the issue really comes down to testify as a great length at the trial in the penalty phase he testified about the totally dysfunctional family life testifies about the mental disability of pittman's family paranoid schizophrenia a biological father  paranoid schizophrenia of a half brother the addiction to alcohol or some other major psychoactive substance he says the family was totally dysfunctional he he talked about the extensive abuse that the petition a face that hands of his his mother says that pittman told him he had been raped four times when he was eight or nine years old by a man he couldn't identify and two other occasions by a man he could but did not know his name he testified that the brain damage manifested itself later in life boiling it all down this had a powerful effect on the defendant and his ability really is inability to control his behavior  in the in the time the impairment of cognitive function memory impairment other scattered findings difficulties in emotional control all bore upon his conduct at the time that's the thrust of what he is saying by way of mitigation and when i looked at what the trial court judge said among other things he says taking all the mitigation in a light most favorable to the defendant i just don't believe that they have much connection to the murders because of the record the extrinsic facts surrounding the record here are that the record reflects cutting the phone lines destroying the evidence burning the house down burning the car coming up with an alibi all of which suggests something very different from the circumstances of his disability made him do it or had an important impact on his conduct but it was the extraordinary excerpt stances in the record that led the trial court ultimately to reject the mitigation claim what what am i missing apprehending and suggesting that why am i misreading the opinion of the trial court in saying that there is no support for that trial court's conclusion it's based upon a rejection of carl hughes's testimony of the state prisons the phone lines and we know that the house was burned to the ground after he had stabbed to death three of its occupants and that's the car was burned these are extrinsic facts not in dispute right the state didn't even see they didn't go after that's not my question perhaps they could have perhaps they should've i'm not asking you about what they could have done well but my point is there was no evidence of a premeditated design the judge is relying upon that to reject the mitigation but he has really no basis for that i guess that's what i don't i did must be me and i'm missing it but why is there no basis if the phone lines were caught and the house was burnt to the ground ground zero the house was burned to the ground of the person to draw an inference from that i might not perhaps as robotic evidence but why couldn't a trial court and a trial jury reasonably draw an inference from the fact that after the reasonably suggests does it not that there was an effort to destroy the evidence of the crime an effort to destroy evidence does not negate the medication and carl hug testified and it was the state's version of what happened karl uses testimony that has been rejected i don't know i may not i never was convinced by carl he was the first place because my client tells me he's innocent he testified in this case and we have evidence just as strong as mr givens  did hear that the lines were cut but he did hear that the lines were cut but we've got two issues in this case and the second one concerns the exclusion of the evidence about mr watson and mr givens go i understand i understand that issue i'm just trying to analytically sorted out and take it piece by piece the jury also heard did they not that the house was burned to the ground and three ger voted for a life sentence i understand there was obviously something there this is not a unanimous that recommendation there's something there and if they're not all bonding this notion of this deliberate fashi mitigation because the brain damage the sexual abuse the whole history the drug use it it's all there and if it even if inconsistent with the facts of the crime maybe it's the wrong person and the florida supreme court's ruling in porter view mccullum they did not addressed the deficiency prong of i see in the u s supreme court set that was to be reviewed don't know in federal court presented as there was some stuff that corroborated and there was a lot of stuff that didn't corroborate ha the account that hodges was offering was in their evidence that undermined t trustworthiness and reliability of hodge's account in this record fairly speaking as well as some evidence that might otherwise support it i mean i thought it was just simply because he was on death row because it was sort of that the judges you kno your answer is to me then there was no evidence in this record from which one could infer that hodges account was not reliable and trustworthy was there evidence attended to undermine the accurate to say that the account that hodges gave changed over time that he offered a much more detail the explication of what purportedly was in the letter on the round t that was not there on around one when he first said i got this letter the letter is gone with the wind but here's what the letter said well i'm not sure that he was asked specifically in the first round the same questions he was asking the second round there were more probing and the theory before that happened was going to be that to point the finger at the estranged why that she wanted to kill her family for some inheritance they supposedly are going to give her and she didn't like them they were taking her children away how was that explored at all during the trial that particular was not explored in the trial because we got interrupted with this other we're going to different direction but it does come up in the post conviction proceeding a while but the attorney did why would he suspend why did he suspend t hat particular theory when he had nothing else to work with he explained in post conviction it was because he felt with i'm going to be going after watson and it's inconsistent with that to also be going after the ex wife the at the time that she was on the stand the trial court had not yet ruled on the admissibility of the testimony implicating the strong watson the hearsay temps correct and so as you put it the defense lawyer not knowing whether he'd be able to go after watson decided to not pressed the issue with the relative because then he pointing fingers two different ways and might lose credibility correct because this is coming up in the middle of  trial and it made it a difficult situation for everybody to help me just factually with one thing mr hodges gave his account watson was never called to testify but wat ok so watson was deposed that's my record on their house and in the course of that i just want to be sure that i had this factually correct in the course of his deposition he says under oath it ain't sorrow i didn't these people i didn't burn the house down it's just a flat out denial i believe that's correct although he acknowledges a number of facts that mr hodges had also and i understand that but i just wanted  history right now i understand and i'm just saying with respect to watson's the nihil of the claim that hodges made i will find that in hodges in watson's deposition i believe so and you know that on the other hand also initially denied the other crime with the work who set the fire on the to the boat but then later admitted that it happened and then there was also the person who was with him right you who you said earlier that gibbons and watson had taken off or left was out after they were deposed that's when the defense attorney was told what was discovered in post conviction was that the prosecution actually had a new and correct address for givens that they did not give to the defense attorney and the after after depositions after the depositions yes and so that was part of the brady claim that the state had withheld that and then there was also the of the department of children family services report that mr pitman's done darva had according to his ex wife had witnessed the murder of her grandmother by her uncle and that was not disclosed until post conviction but that would also support that the ex wife and her boyfriend had done the murder and even that was presented in the state court as newly discovered evidence  they wasn't given immediately took off and we're not thank you very much counsel we know that you are court appointed and we very much appreciate you taking on the obligation of well and vigorously