ringback done they could never explain what they had learned from him instead lead counsel testified at post conviction hearing that basically what they did was they subpoenaed a bunch of people that mr burns mother had told them about not mr burns but mr mr burns family had told them about and those people came in the middle of trial and i think the record reflects that they would have had a recess at about two pm on that friday and so these people would have been coming in that afternoon and then they commenced the penalty phase at four twenty pm that day live and so in that time period they brought in about a dozen people to talk to them to decide who would be best and i think that's completely obviously contrary to ron pillow wigan's williams and those a guidelines that this was these were people they needed to talk to and formulate a theory with well prior to trial you know i don't think it is just talking about people and saying oh you say something nice about kev and they needed to find people who c tell them and tell a jury who kevin was and what he had overcome and they simply never made that effort at all so i guess the question becomes did did was there an adequate investigation and mitigation strategy i submit it's the later i don't see any evidence in their post conviction testimony that they had any strategy other than lesser culpability they did say they wanted to show that he had lesser culpability and that was their strategy but on that issue in regards to deficiency lead counsel testified that he had assigned to his co counsel responsibility for impeaching eric thomas testimony with any prior inconsistent statements they had the transcripts of his prior testimony they were they are and co counsel simply didn't do it and lead counsel couldn't explain why and the best that co counsel could say was in the heat of battle something gets missed transcripts are something that gets missed you print them out you print multiple copies you bring the copies to trial it may be you don't know exactly what parts of the transcript you're going to use but you have every bit of that witness's testimony on every material fact flagged and you are ready that's a matter of preparation in the heat of battle a competent soldier in a competent lawyer is not flailing around they know what they should do because they were prepared before the battle and these lawyers simply did not do it in light of the two hundred and ten pages of testimony and post conviction hearing what was not done that you say was absolutely necessary to be done in this faithful person no doubt about that and twelve pages glossed into that but he's a young man he was this happened on his nd birthday who had a record of achievement that actually was inconsistent with his upbringing he is living in a home with nine siblings one of whom is profoundly disabled a mother who has to spend her time caring for other people's children so she has money to support her family other siblings are having to care for his older brother he is actually acting as the man of the house and in all of this he doesn't drop out of school but he purser viewers one of the reasons he also has to act as a man of the house as the ostensible man of the house his father rarely is there when he is there he's drunk he shows it one in the morning he's physically abusive he demands to see his children and one of the most indelible impressions he makes on his whole family is when he puts their mother in the hospital for three weeks by breaking her jaw which was a large use in the briefing that the children would not know that that occurred how can that be so i don't i i think that's a counterfactual possibility i don't think the children would not notice that their mother was gone for three weeks in the hospital and i cannot fathom it that they wouldn't notice when she came back with the the jaw brace or whatever you know certainly the testimony is that his other siblings were scared to call father when they needed money they would you know draw a lot so to speak as to who would make the call because of the danger of physical abuse from him and so all of that is to say that this young man had overcome and there was a reason to believe he could do better and michael his song this vice president from shoney's and i think we have to talk about what shoney's is in the ninety's is a fundamental institution in tennessee everyone on a sunday afternoon is either a cracker barrel or to shoney's and so having this vice president come in to speak about what a good man kevin burns is about how he was somebody he wanted to open a new store for and on the different issue how is here was no longer than mine which i'll get to in a nd to not here that was so fundamental and where that goes is where i'm about to go the character that kevin burns displayed in overcoming a stablish is that our argument that he is not the sort of person who would be the man firing all the shots into the car is even more strongly supported when a good players my claim is he did not fire a single shot in the car that the man who fired the shot all of the shots that killed damon thomas is dare care on a six foot four inch man described as the big fellow in glasses at gerunds trial and my contention is that mary jones identified someone is a gunman shooting into the car who had a long jheri curl which could describe almost any of the other gentlemen at the scene except african words he was the only one with hair like my own that simply cannot be wore in a jheri curl so the proof that was before the court your honor which it doesn't matter whether i agree with it or not but the proof that they heard about mr burns role was his statement that prior to the robbery prior to any robbery taking place he fired shots at this man tommy blackman or in the direction of tommy blackman who was fully that's an awful thing to do ok i'm not minimizing it and that put other people at risk but his testimony not his testimony his statement to the your heart all unless of culpability i think that that ruling that i just read is the fundamental ruling that is contrary to clearly established law that permits review under the one as to the two hundred and ten pages of mitigation that the jury didn't hear i think the fundamental ruling that they got wrong that's contrary to clearly established law is this they held that that two hundred and ten pages of proof did not offer any explanation as to why mr burns had committed the crime and i believe that that's contrary to clearly established law dating at least back to eddings the oklahoma but most explicitly smith v texas which had been decided the year before by the united states supreme court where they had rejected an identical nexus requirement by the texas courts where the texas system had required had said petitioner offered no evidence of any line or nexus between his troubled childhood or his limited mental abilities and this capital murder and they said texas was in error for imposing such a nexus requirement and deed brown vs the peyton skipper of the south carolina and of course all the way back to eddings the oklahoma make clear that evidence entirely unrelated to why the crime happened indeed evidence that's developed after the crime itself such as remorse and post crime rehabilitation may be considered there is simply no requirement in fact if there is exact opposite clearly established u s supreme court law makes clear that mitigation is anything it does not need to have a nexus if it can inspire leniency it must be considered and that nexus a requirement that's contrary to clearly established law strange i think i may have wandered off from your question a bit ago about what they didn't hear about that was so fundamental and and maybe i did and i feel like i've said some of this but just  tighten it up a little bit they heard one aspect of him which was religious faithfulness but i had no idea whether this was a religious faithfulness of somebody who has a spoiled life that everything's come easy and he can thank god for all the blessings he's had or of somebody who has overcome and it was clearly the later this man growing up in what i think is fairly extreme poverty three bedrooms and one bathroom for ten residents one of whom is profoundly disabled profoundly disabled they are all living together they're living together under the threat of paternal abuse at any given moment and they're living with a mother who simply cannot be there for them and he overcomes all of that to become a very good person that the jury simply didn't hear about either they knew we prayed when he was ten and one witness said he prayed when he was ten and the other faithfulness witnesses said he prayed in jail ok and a brother did say that they went to church together but they never heard again from michael his song about who he was today somebody who worked his way up from the dish room so that when mr his on the vice president of shoney's wanted to open a new restaurant he was who he wanted to come with him and i submit that this is different strength and in subject matter from what the jury heard ok the jury heard merely religious faith and what they should have heard did you have a question my question is can you meet the supreme court on whether or not the absence of evidence could be we simply expected to change the the test is so strange stringent count floyd in as much as we have to find that absence of evidence the depiction performance here failing to portray this that cendant and this this young man as so severely deprived and poverty stricken that it deprived him of a fair trial and cause good as you know violently you know he took care of his fairly he had to step in because they couldn't depend on his father but there's i don't believe anything that suggests that  was an easy question we were trying to decide do we believe that he's the guy who fired all the shots or do we believe that was during her and they listen to all these people who talk about what a great guy he is i think that makes it even more likely the jur yes marshall thank you yes it should be better here thank you very much his employer for example they did not then discussing the reasonable probability sandy didn't use very very important