welcome the argument pres now versus warden judge joe flat is a member of this panel and he is fully participating but he's recovering at home from a surgical procedure and will be participating about phone both in the argument if he has any questions and also in the conference here after having said that mr  your affidavit that she'd been drunk throughout the pregnancy i saw one answer and the affidavit where she drank a pint of bourbon and started on another one before somebody threw it out doors there is the one incident that she details in the affidavit of drinking ups might not have she actually gives a deposition in the state a b s proceedings as well in which she indicates at the trade king about two to three times a week i can pull that cit would have a few drinks by myself wondering who who might approach home my husband was with i think sometimes i drank during this period just because it was my and it go on oh that doesn't say she banned drank i'm think the deposition would have been taken during the discovery period following the tendering of the affidavit at the completion of the tissue nurse discovery yeah i'm shocked that when the chronology but about how much time elapsed what we should note that dr weinstein don't you know i don't know how much time elapsed i can certainly find out for you your honor i can hold it up and if you like i can give you that how i was just couldn't tell you understood my question and i don't know but i'll find out  it perfectly adequate answer that it just seemed to me like this woman's story got better and better every time she told it i think she tells the story pretty consistently around her and the incident where she drinks the plane and a happy birthday and we shouldn't minimize dr weinstein and his analysis of the type of clean it allowed the whole exposure that is most injurious to a developing infant identifies instances where large quantities of strong liquor are consumed in a single sitting so even if it were just this one instance i don't think we could make him eyes the danger i know it but you may be maximizing her story what she actually said in the affidavit and then perhaps she initially threw the bottle in the middle of the street that doesn't say she drank after i will i will check on that your honor but i do think in the record that she drinks about a plane a half that that was that she certainly drinking more than one pint and when did she say as a deposition about whether she had tome as both an act i think in the deposition she indicates and i hate to be talking so much about a document that i might be able to hole and respond to more fulsomely went on why don't you just again the knowledge of mr president is organic brain injuries and the full extent to which they damaged his judgment and ability to control his behavior would have been powerfully mitigating in its own right there are many supreme court cases on that point including rumpy which specifically addresses organic brain damage from f a s d f a s d would also explain and corroborate mr president inability to function academically and socially just let his childhood educators to recommend his  understanding the us sure you castigate the criticize constructively criticize the government for suggesting through some of it's experts opening brief let me finish to the extent that was the state's i'm sorry to the extent that was the state's theory at  why is that less an explanation then at the time of birth instead of having lost the genetic lottery in a colossal way he was damaged  fetal alcohol syndrome and that led to why why is the nd theory that much more mitigating than the st your honor st i think the premise of your question might be mistaken it's not the state's experts who are suggesting that he's a pedophile genetically are that's actually their expert that's dr shafer steer e is that mr president is a pedophile because of some genetic lobe cerebral damage just the way the genes lined up we all get a unique package and he drew a bad package and was destined to be a pedophile when combined with the environmental factors that he had that's one theory the other theory is he didn't draw a bad genetic tick and stead it was the alcohol that is mother took but however he got there it's the moment of birth he was that this same as if he had been genetically destined to be in that shape and then you had the environmental factors why is one so much more powerful mitigating evidence than the other one blames a mother the other blames just the genes if you will because of the way that that theory was presented at re sentencing your i but if they're both if they're both presented in the best way and you're the one charged with presenting each one in two parallel trials why is one theory better than the other well i don't think we're even talking in terms of presented and i guess for phrasing in this way whether it was presented better or worse it's just very different is one of those two theories better or worse than the other i think there is something inherently mitigating to a brain injury suffered before birth because your mother poisons you with alcohol i think that is mitigating in and of itself also dr shafer's presentation and i promise this i'm trying very hard to be responsive dr shafer presentation is that mr president al develops a pedophiliac disorder from a combination of two factors some vulnerability or predisposition to developing inappropriate sexual behavior and exposure to a childhood which is rife with sexual dysfunction and abuse where these theory falls down in a way that i think steps out of just better or worse and to the point of complete failure is he can only identify as a vulnerability and relies very heavily for that vulnerability on a genetic predisposition that is debunked in trial because it is premised entirely on the molesting behavior of virgil's maternal uncle who did not begin molesting anyone until he had suffered a head injury i can't overstate the degree to which dr shafer relies on this genetic predisposition he says that nine times in the st eight pages of his testimony even pair of a been pedophiles are subject to head the fact that if i would be subject to head injury sure how do we know he wasn't a pen a phone just had manifest i don't suppose there is any way to know that your honor but that's not how dr shafer is presenting it dr shafer is pointing to james and say and again there is there are multiple multiple references to this during his testimony as i mentioned there are nine in the st eight pages he is indicating we look at genetic patterns and extended family patterns pointing to uncle james who's just repeatedly reporting to uncle james as the evidence of a genetic predisposition and when on cross examination it is pointed out to him that vergence maternal aunt lily and has testified that same day that uncle james did not begin molesting anyone until a car accident he completely falls apart there's then quit the state's experts then get up and say yes there's no genetic predisposition there's nothing in the literature to justify that and he's certainly not qualified to speak to it and that is the foundation  there are two pieces of mitigation that dr shafer has really tried they're trying to present through dr shafer one is that he has developed this pedophiliac disorder ready again by the combination of some vulnerability to discussing the nd piece of litigation dr shafer is brought in to investigate intellectual disability re sensing counsel says in his affidavit when he met mr president he thought there's no way this case goes to trial this guy is clearly intellectually disabled vineland and he administers away story and he also discovers the same scatter in virgil's intelligence test scoring that had been noted throughout the school records there's always a scatter it's never fewer than eleven point there are a lot of different explanations for a scatter a scatter can be brain dysfunction it can be a brain injury or it can be a learning disability and at this point all of the evidence presented to shape are the only indication of any kind of organic brain injury it's a fall from a changing table ready at six weeks or the use of force eps and delivery he does a limited and what he says is you only do narrow logical testing if there is some indication of brain injury so it is a limited holistic right and he does not explore brain injury so both of these pieces of evidence are each within themselves they have to foundations the pedophiliac disorder is founded upon the idea that there is a genetic predisposition which again is unfounded i or scientifically or in the facts of this case the revelation of which is devastating to shaffer's credibility and with the brain injury he says there does appear to be some brain dysfunction here i've done this limited battery and he showed problematic scores on two of these subtests that i administered and the prosecution comes back and for want of evidence of the actual source of the brain injury which is this prenatal exposure to alcohol all dr shafer can say the cross examination is so you're saying that he has a brain injury because he fell from the table and he has trouble playing with blocks the full scope of mr president is prenatal brain injuries never comes into the case there are implications for his executive functioning the ability to control the space you're never comes in yes  did any expert testified that the following are the causes of pedophilia and it has to be one of these causes code and then to list them i think both dr speak to that in their reports and dr weinstein dr lisa that particularly lays out the risk factors for pedophilia and that is for the development of a pedophiliac disorder and that is certainly one  five percent of people with f a s b manifest inappropriate sexual behavior which covers an entire range of things including what we're what underlies the crime in this case but in others so we're now testified as i read and what are as i read what you presented no one testified that fetal alcohol syndrome is a leading cause of pedophilia all are believed one of the experts testified that most least i thought it was very likely that he had been two of the people with whom he was sharing a bed during his childhood were confirmed molesters of children there was model state yes mr president they all did not testify no sir he did mitigation hearing about how it was very likely that he had been sexually abused as a child and his uncle had abused his his aunt and his aunt's daughter a gas and that it was and it was around the same time that he was there and there was belief that he had been sexually abused at that time two things to that honor i think your honor i think you're correct dr shafer was point as part of pointing to this idea to generate genetic predisposition he was pointing out the chamber was in the house and was molesting the sisters at the time mr president was i think four or five years old there is another piece to that which did not come in at the recent sing trial because the investigation for the recent sing trial do not speak to any members of president's paternal family which is that mr president's father also molested his family members so there is and he is another person who was in and out of mr president's life that co habiting with him for periods of time so that is another exposure he had making at in the opinion of the experts likely that he was molested that doesn't come up in the reasons in trouble yes i think that's correct yet mr president never said his father molested no he did it's that's not unusual it's not unusual for people who have been sexually molested to deny being sexually molested but mr president has exposures to i keep wanting to say sexual dysfunction while feeling that it's rather inadequate to capture the full flavor of the many horrible things to which he was exposed in childhood contribute to that same cycle of violence like  where if you do have this vulnerability and hear again sixty five percent of people with that they ask me manifesting inappropriate sexual behavior there is something about the nature of the injuries sustained by create a lot of exposure that creates this vulnerability i think that would have been very compelling for the jury that combined with the childhood environment leads to the development of this disorder you know it just seems a bit ironic if not that he would admit to right paying too well raping a young girl and murdering an eight year old girl to use too embarrassed to admit that he was sexually abused when he was child i'm not sure a jury would have bought that theory your honor i can't speak to that he is very candid with the police about what he did and is quite remorseful as evidenced by his tears during that statement and by singing wish to god i' never done it the shame of being sexually abused is deep and something that i believe dr lisa talks about and so while mr president was obviously and is very much to this day ashamed of what he did to these girls he is also i think that there's also a very strong possibility that he is ashamed of what was done to him and that goes to sort of our overarching theme here is just more ashamed of what was done to him than what he did to these little girls i think there are different kinds of shame that are accessible and i think that you when you have something for which you have to feel remorseful because of something that you did as opposed to something that you're shamed of that was done to you perhaps that p es a greater obligation on you to speak up and take responsibility so turning for a moment to the reasonableness or unreasonable ness the attorney's investigation yes so dr shafer was hired for the purpose of doing other things as i understood it inquiring into parental alcoholism now clearly he did not get this information from doing so well but but am i mistaken in my understanding that the attorney hired him in part to inquire into parental alcoholism i think so when dr shafer is st contacted by counsel in july of ninety eight he sends a memo where he says you know these are the kinds of things that i do these are the kinds of areas that you're going to want to investigate and one of the thing it can and he says i'm going to rely upon your investigations talking with other family members to identify things and shaping the examination he blags a number of things in that  o which include you know developmental issues during pregnancy alcohol he lists a number of sort of mitigating issues when he runs through that dr shafer his examination as it actually plays out is focused much more on intellectual disability and i don't know that i can i will i will check i don't know if i might not be responding to your question but i'm not sure that parental alcoholism is something that he would have been focused on the alcoholism among his parents is his father delano who is not investigated by re sentencing counsel he does not come into the case at all until he provides an affidavit and state and so i'm responding to your question would you like maybe not even a little bit following up a little bit yes district court said that you did not dispute that dr shafer focused on head injuries complication during pregnancy and birth verbal physical and sexual abuse etc is that correct i think in the end that's where he ended up he focused on intellectual disability and again he you know he now know that w this i ask you about five things and you said yeah i think that's what he did one thing now be there the district court said dr shafer focused on head injuries complications during pregnancy and birth verbal physical or sexual abuse parental alcoholism and mental and emotional problems and he says ya'll don't dispute that well being the petition i was not trying to dispute it then your honor i apologize i launched into a narrative probably ill advisedly i do not think that for rent that developmental issues during pregnancy or birth would be an accurate assessment of what he did except as for the fall from the changing table and wondering whether that might have had one about parental alcoholism i think there was some discussion of the parental alcoholism from doubt the delano as i understand i apologize she questioned there in the rd time being before trial meeting with the lawyers yes and that somewhere along the line she asked her about her drinking during pregnancy she asked her that during the st two meetings with where she asked a question about drinking and got an affirmative answer yes i did drink during my pregnancy which she did not explore beyond that and i saw scuse me yes or stick to what i understood well i agree your honor i think that the only thing that you can tell from her answer that she drank socially is that she drank which is where we that's you know that's not the common understanding of drink socially when somebody says i drink socially i take that to mean that when they're in social occasions they drink well i think it means different things to different people and what it means to a pregnant teenager married to an alcoholic soldier in one thousand nine hundred and sixty three is a different question than what it might mean for what is the social component of what it means to that teenager because she's not a teenager at the time she's being interviewed well i think you have to know but in this case well in that case a sixty three year old factory worker with was seventeen at the time in one thousand nine hundred and fifty three point is yes or before trial ms beauvais interview and she says yes i drank but only socially yes all right and you say that's the equivalent of saying that she was at home alone binge drinking oh i think it is only the equivalent of saying yes i drank and that you can't know how much or how often the frequency or intensity without asking followup questions which is why it's a red flag or suppose someone says suppose if she said no i didn't drink is that the equivalent of yes she drank i mean i don't understand how you can change a word drink socially a phrase to drank and that's all it is but yes i drank doesn't changes well i don't think we're trying i don't think we're trying to change the word i think we're saying that you can't know what socially means without asking more questions you really think you really think socially could mean binge drinking at home by yourself a pint and a half of bourbon i think that socially is limited to the experience of that person unless you know what that person's understanding of socially is and again looking back at it is that why you incorporated into the affidavit are going to show us in a deposition where the mother says of course i said drink socially and what i meant by that is i drank a great deal at home by myself and binge drink during my pregnancy is that how the mother is going to explain that answer why i think the way she explains that answer is no one asked me any more about how or what i drank until the state a g s proceedings when i was asked and it turns out that socially fertile she going to test our has she already chest the records closed but when i said socially i'm man binge drank at home by myself her say when i said i drank socially what i meant was i drank a great deal at home by myself your honor that what her affidavit explains is and what i think her interview with shows that she was very candid in answering the questions that she was asked but there were no follow up questions about how she drank now when she said socially that indicates yes and at this point maybe she has a reluctance at that point to expand upon it there is a line of case law saying that that does not absolve counsel of their obligation to follow up on a red flag in this case the red flag is yes i drank during my pregnancy and unless you know how much and what you can assess the mitigating impact of that there's nothing in the record to suggest that lois was that partly that she's now deceased that ms samples was dishonest or was evasive she held forth  really the question here is whether the state courts decision that is of no deficient performance on the part of trial counsel and no prejudice if that is an unreasonable decision if that's contrary to supreme court precedent as determined by the supreme court or if it's an unreasonable determination of the facts and your honor it's our position that this late revelation late in inconsistent revelation of ms samples to binge drinking does not undermine the quality of the investigation that was undertaken by trial counsel trial counsel investigated the case on their own they interviewed mr president they interviewed mr president his family members including including this the samples excuse me and they had their experts that were recommended to them by the multi county public defender's office who are experienced in death penalty litigation to hire both  shafer as their mental health expert their psychologist your honor said that mrs sample story got better and better every time she told it and though her story got better and better the more she was and ms samples in that deposition does indicate what she means by socially she was asked about her mother and father's intake of drinking and when describing her mother's intake of drinking she said that her mother's intake of drinking was at different times and by that she meant socially that that did not indicate that her mother was drinking heavily that her mother was a binge drinker furthermore your honor during her pregnancy she had stated not in her father delano he says nothing about mrs samples drinking while pregnant though she was allegedly his or excuse me her drinking buddy moreover miss samples alleged in her affidavit that she had drank during her entire pregnancy and yet when she lived with her other family members after della know that as mr president's father went to japan none of her family members ever witnessed her drinking and even if she drank alone she would have drank in the home with them no one ever witnessed that and clearly that late in inconsistent revelation has credibility concerns and would not have undermined the investigation undertaken by trial counsel who specifically through misspoke they asked her about her pregnancy misspoke they indicated that she had a normal pregnancy that she smoked a pack of cigarettes during her pregnancy a week and that she drank but only socially or excuse me of being more specific she said she did not drink except socially and i think that's a very telling on trial counsel noticing a red flag i don't think that mr president can show that no reasonable turny would not have deficient in not investigating some not discovering this but they also had her personally interviewed by mr pennington their fact investigator that is they had the samples interviewed they had her interviewed by ms beauvais and they add her interviewed by question and i'm sorry well shafer turned out to be let me start he said i will do that based on the information that is brought to me the defense yes your honor he did take into account information that was given to him by defense but never did he indicate that was only what he was going to take into account especially since he independently interviewed mrs samples and mr president on ms lilly and shepherd so he wasn't only restricted by what trial counsel gave him and trial counsel also testified in the state he would be as hearing that they did not restrict dr shapers evaluation in any way had they asked for additional or had he asked for additional information from trial counsel they would have provided that t and had dr shaper indicated that there was anything else that needed to be done they would have followed up on that your honor also this theory that mr president is now alleging that shafer's entire testimony was about to suggest genetic iall e g of him being a pedophile and therefore he was warned to injure children that's just not supported by the record he did say that there was a genetic basis coupled with his environment which made him more vulnerable in combination with his brain disorder to have behaved the way he did at the time of the crime again dr shafer was not used to explain his pedophilia but to mitigate his culpability for the events of the crime but not necessarily inconsistent their theory is anything that explains why he did  including the fact that he was turned into a pedophile and part of the mother's drinking is made again and is more mitigating than the fact that he just was born with bad genes or  only at trial was that he was a pedophile born that way that's not correct and so what they're saying dr weinstein and dr lie six said that coupled with his sexual abuse and his impoverished conditions  lived in a home his abuse suffered by his father and his family members that was also presented at trial the jury heard that information and they heard the information of him possibly being sexually abused by his uncle with whom he lived they heard information about him possibly being sexually abused by a minister for a halfway house that he was in and also specifically his mother testified that one of her boyfriends mr willie mcgee had m stand naked in front of or excuse me stand in front of the family naked with his daughter and had to look at each other to prevent their future curiosity that was presented to at trial i'm not at trial i'm not talking about state collateral proceed was there any expert testimony presented that all of that could have could tribute to either his pedophilia or to his inability or lack of desire to control his code of fuel and to control the vala criminal actions yes your honor that was presented by dr shafer that all of this combined is what made him who he was at the time of the crime explained his behavior that and that trial counsel argued in their closing arguments that he was programmed differently that he came from a different background and he came from a family where abuse was present in the state took all of that into account in its prejudiced analysis as well as the affidavits at the state proceeding in determine that there was no reasonable probability of a different outcome further furthermore your honor even had trial counsel submitted this alleged revelation by mrs samples about her prenatal binge drinking there's no evidence that dr shafer or any mental health expert would have diagnosed mr president with fuel alcohol syndrome specifically mr excuse me dr weinstein himself says that all the evidence points to the fact that this is consistent with fetal alcohol spectrum scent fetal alcohol spectrum disorder and he never specifically diagnosis him with feel alcohol syndrome moreover he describes fetal alcohol spectrum disorder as a subset of fetal alcohol syndrome and not fetal alcohol syndrome itself and as part of fetal alcohol syndrome the definition includes having abnormal facial structures and skull structures and mr president was described in his school records as a handsome youngster and his photographs were also submitted into evidence at trial which would have been available to the jurors to look at to determine for themselves whether he met that definition that would have been offered by any mental health expert haven't reviewed the record i didn't see anything about mr lysaght determining that the shame was deep i did see that he said that mr president did not report any sexual molestation but in his opinion the history supported sexual believe that he was likely molested that's my attempt to respond to your question from earlier about whether there's an inconsistency there and we are not disputing and it never disputed that a great deal of evidence of the sexual dysfunction in mr president was childhood came in just as in fact a great deal of evidence that would indicate had it been recognized as such organic brain damage came in what is missing is the understanding of the fetal alcohol spectrum disorder and the impact that that had from both components of this i guess on and to tori issued after all one of the experts did some exams that should have shown up should have shown organic brain does disease or disorder disease if it had existed and i'm wrong about that you want to  mean i can run down who did what if that's helpful no i dr shafer did a did four subtests from the house to the right hand two of which indicated brain dysfunction but as he says in this testimony neuropsychological psychological battery that dr weinstein does along with a number of other tests without which i can enumerate there's also the e g which confirms damage to mr president as frontal lobes and dysfunction in that area which is we know is a category of mitigating evidence that the supreme court has recognized again and again and of course in room pia they recognize organic brain damage from f a s d as mitigating so i mean i want to make sure that the overall theme of what saying gets across the st is that this is mitigating in and of itself but also that this is dr shafer in his testimony and many people discussed medication talk about puzzles this was the missing piece this is the piece that both corroborates and is corroborated by the evidence that the jury did hear about brain dysfunction the evidence the jury did hear about the development of the pedophilia disorder there is a world of difference i would submit between he's in this childhood environment which can cause pedophilia if you're vulnerable to it and i think there's a vulnerability because of a genetic predisposition based on this uncle who it turns out does not start molesting anyone until he suffers a head injury i limits his ability to control his behavior which is damaged his judgment so profoundly and also how he is so vulnerable to the development of this pedophilia disorder putting  obvious point that child molestation is a violent crime yet in the sense of the harm it does and other aspects was there any indication i'm thinking now drownding little eight year old girl which is why we're here this hall is there any indication that there was a violent crime history and his family in his family you know uncle james for example or anybody else i mean if there is i want to make sure that i don't miss the there is certainly a violent history and uncle james that follows there's very violent mala stations there's forced incest between his wife and again we've discussed you know we've discussed what lois conveys ms present and as samples conveys about the drinking that she did and her what representations that she made to counsel about that i mean would i do want to underscore again we are talking about red flags the only thing that we can know for certain that socially means is yes did you drink during your pregnancy i did not drink except socially socially is yes that is a red flag and there is plenty of supreme court authority on the premise that even if you think a family member is not being cooperative with you and candidly i don't think there's anything in the record to suggest that ms that ms samples wasn't answering the questions that she was asked very openly and candidly then you still have to delve into the facts farrel in this court you know when you have a if you need to delve into the facts you have to ask the follow up questions and that is what did not happen here i don't think you need any particular scientific expertise to perceive the need for that in any category of mitigation when you're talking about whether it's occurred you need to know intensity and frequency and i'm so it tuned at this point to the movement of your jaw i'm stopping talking i didn't want to interrupt your last thirty seconds so if you got something to say i'll save my question i i couldn't possibly remember yes or what  did you physically abuse the petition oh no no no and they didn't ask anyone else and then the record conclusively show if they had asked anybody else said she'd been drawing during pregnancy am i wrong about that tell me who all would have said well i think by the nature of the drinking that she describes she is the source i'm sorry  course but she did not i'm trying to put her in the position of the of of the father to be used his son didn't want to tell anybody maybe she didn't solve the social just drank socially that maybe she's covering it up because she's embarrassed and he's in trouble now and she may be the source of so she says no if they had to ask other family members what's your best evidence the other family members or friends or neighbors would have said yeah she drank like a fish or she drank a lot of but what she describes in the record is sitting at home waiting for him to come back and she is the only source there i do think it's important though that again she's not denying that she drank she's admitting that she drank during her pregnancy now whether for whatever reason she had for giving the answer that she gave which is an ambiguous answer i would contend that you can't evaluate apart from the context of that particular person what their social mores and practices are but she answers yes and there are no follow up questions so again did you drink during your pregnancy yes and that's the end of the story you know it hadn't been that long ago or maybe it has and i've just lost track of time and wish the medical community didn't say thou shall not drink it said for a while drink in moderation if you have to then it was one glass a day and then it got to be one a week or something like that and then the flat ban failed so i'm not sure what the advice was at the time she said that i think we have some information