to investigate a witness diane bush who is listed on the state's discovery not only was this witness list in the state's discovery but when trial counsel deb go in so you didn't participate in the actual trial but she did an early interview of mr interest about what's in it was her deposition taken before the trial just before the state collateral proceed apparently both from what was represented by the prosecutor j r with regards to a lot of the negative things which were coming out about the sexual relationship and whether it was you know threatening sexual relationship between mr johnston and ms bush but the defense is post conviction counsel never saw this deposition and mr printer with eve you were post conviction counsel correct but we don't know whether it was introduced at the trial or not i mean it was not a part of the record  never saw in the state court record this deposition that mr premier the prosecutor kept referring to but it was i guess with quotes around it it was introduced in part by the questions and answers i guess that's correct mr proner was at the evidence are you hearing with a series of handwritten notes and he was questioning ms bush from his handwritten notes about this deposition that apparently was taken prior to trial yeah you know we can judicially notice parts of the record in state court but i i gather what you're tell me is this deposition was never part of the record in the state court proceeding that's correct ok perfect and was she was she deposed before the sta witness alone because there were a lot of negative thing is in police reports and this is because this detective heard this officer from the sheriff's department went to the hospital to talk to ms bush because radar johnson had been arrested so the basically stand you're telling me as far as you know no one was present when she was deposed by the state for the state comp before the trial the original trial no one for the defense w without the defense being the only depose i had that would be highly unusual i would i would think that defense counsel would be fair if that there was a deposition of diane bush but again we didn't see a transcript and we didn't see any notes from the defense counsel what we did find her notes from deb go in where ray johnson said this witness i saved her life three times so this is a situation where counsel is obviously on notice that there can be some extremely powerful mitigation from this witness there can be this level of mitigation with regards to mr jackson saving a woman's life is some of the most lofty mitigation that can possibly be presented at a capital trial with mr johnson's life on the line not only were there notes from  interviewing mr johnson of the jail but there was also a letter from mr johnston to the trial counsel so mr registrar who actually did the trial would have read the notes and again mr johnson said you need to interview this witness apart from alone apart from law enforcement apart from the mother apparently there was animosity between mr bush's mother and mr johnston but as far as the failure to investigate to take the simple step st step to interview this got her away from the prosecutor and that sort of thing and found out all there was to find out and had known about the impeachment habitants and the ad person evidence that could have come in it and had made a conscious and you make powerful argument that he never made a conscious decision didn't know about it and made a conscious strategic decision not to use that evidence because it was too risky and could a reasonable attorney fully informed and made a reasonable decision to that effect well what we have to look at is her actual testimony at that evidentiary hearing and when looking at ms bush testimony at the evidentiary hearing there really is not that much negative things for ms bush yeah but there's also testimony of other people in the police report would have been read to the jury in cross examination the nurses could have testified that while she was sedated he was up on top of the hospital bed on top of her and at one time there there was an emergency in the rest in there to help her and he wouldn't get off of a long enough for them to administer medical aid to or and all and on and on your honor what this brings up is the issue which was found and seriously up then it's that co counsel should have been able to turn some of the adverse evidence into a positive but of course there was lesser adverse evidence in that case and there was in this case i mean you had a guy who was convicted of three progress one of which abuse of the woman's hips with the belt she was wearing and then you had the same thing coming out in ms bush's statement to the detective in which she said that basically the way he treated her while they were having sex went on when the belt was hand and so forth so what i'm asking you is could a reasonable attorney given all of the adverse information that would have been presented to the jury in cross examination could he have made a reasonable strategic decision not to go with mr bush's when side i understand and that's an argument for the jury but what i'm asking you is could another lawyer who disagreed with you about whether it was worth the risk a reasonable and deciding that it wasn't worth the risk it's a it's a yes no or i don't know the question your honor again looking at her testimony from the evidentiary hearing i believe it's been shown from the record in this case that this testimony was positive  was able to interview ms bush with my investigators and we were able to present this witness to show that this testimony was very very beneficial and most of the negative things that you see there in those police reports ms bush said i don't remember that i don't remember that and it's very impulsive individual and that's what sears says that trial counsel should do is even in the light of negative information you try to turn that into something that's been official for the trial for the trier of fact in this this case your honor what we have here is a real mark johnston is a very flawed individual very impulsive individual but this is a very fatally flawed florida system and that's why i tried to keep raising the caldwell arguments i realize it's not part of the c e o a but in this case over arching the ambush i believe is it's not just i see for fair to call a witness to trial but this is a trial which has been deemed unconstitutional by the united states supreme court this is a trial where the jury was informed not once like in caldwell where mr caldwell received relief but sixty five times his jury was informed that again there's a trial counsel could have turned any possible negative into a positive that there was he had turned the fact that mr johnston was on top of the heavily sedated bush performing a sexual act on her when the nurses walked into a pasta i agree there is a very sensational lipstick narrative from law enforcement they went there to the hospital room not to gather medication for mr johnston but to be to obtain as much negative i'm sorry do you deny that that happened is that your position it just didn't happen and we just going to go on with our position as though it didn't happen it wasn't investigated i never saw a deposition of this norris's sending it happened you know like sears with the sears background turn that into something  indicate he's got mental problems and therefore you shouldn't give a death sentence is that ackman trying to understand and understand well there were things that she could have testified to that were good but that's not the state's case the state doesn't deny she could have testified to non statutory mitigating circumstances their cases onder stand it is there's so much bad that would have come in and that a reasonable and tourney would have said as this reasonable trial counsel said when he was presented with all the us that would have been very bad for us and in fact i wouldn't have used it even if i'd known all that and it seems to me that given that statement we know the state courts credited his testimony as true and accurate we know that if he had been fully informed of all this evidence he would not have used there's not a reasonable probability of a different result if he would not have used now the counter that maybe well it would have been ineffective assistance of counsel for him not to use it i understand that but it seems to me like given the fact they've credited his testimony did he wouldn't have used it you've got to convince us that every reasonable attorney would have used that testimony even being fully aware of the bad  saving her life there was a aggravator presented by the state and it's bikini area again and if you look at this evidence which shows really large honestly could've just taken ten thousand dollars just a few months before this murder so did he actually was this crime committed for community again there's a there's a question as to that so i don't understand your argument about that the guilt stage argument on the ten thousand dollars cash the state didn't say hey he kidnapped raped and abused the victim in this case because he always does that to women who have any cash or any way of giving him money they used a financial motive and in fact he used her a t m card to get a one thousand dollars in cash but i don't understand their syllogism he didn't steal the ten thousand dollars sixty cents days earlier and therefore he couldn't have committed this crime are unlikely to have committed this crime for money these are two different situations the three priors that he was convicted of were all women who were strangers to him he didn't kidnap abuse and rape or otherwise women who need and in fact there's no way he could have stolen that ten thousand dollars without getting caught and punished for it is that i mean this bush knew he was going to her house she sent him there to get the ten thousand dollars she sent him there with her neighbor he steals the ten thousand dollars she tells the police if he still said ten thousand dollars and kills the neighbors so he won't she won't tell on him mr bush tells the police i don't understand how the fact that he didn't steal the ten thousand dollars makes it the last likely that his kidnapping the victim in this case was fair and least in part for perfect gentleman and she did say that right in the latter lighter but didn't acknowledge that he had mistreated her during sex and a sadistic away but she just assumed that all gentlemen die that way well again you're out of this was mr prove the prosecutor and he had these notes we don't have an actual deposition transcript but ultimately at the evidentiary hearing ms bush said i just want to say that this is she finds this to sometimes be the norm a certain gentleman and i got her to affirm that she never felt threatened so what the prosecutor this was the prosecutor's theory this was not trial counsel's theory prosecutor had a theory that this is going to be negative information because it's going to be like look really mark johnson is trying standard has become since i filed my appeal in this case at that time i would have to show in this twelve i would visor recommendation that there would have to be at least six jurors six advisory panel members who would change their mind this case the burden is only one had this testimony affected just one of these advisory panel members regular johnston gets relief ok so now it's a it was deemed to be a harmless error by the state courts but are the argument now is that because we only have to show a change of opinion of one of these advisory panel many members rather than six are burned becomes that much more or less and the state has a burden here to show that this wouldn't have made  determinate this would have made a change of opinion just one juror and what we're talking about is the theory that if you get twelve people you're going to have one who is more likely to side with the defend are be affected by this kind of argument that is at this point if this testimony that mr johnson say this woman's life would have affected just one of these members then he would have and it's not one member by her or him being affected other eleven done that one member would be different from the variation from the other eleven right right i thought the supreme court had told us repeatedly that when you're applying the reasona probability of a different result to a jury situation it's an objective standard and you're not supposed to take into account p t o syncretic jurors and the wrong  well i mean just because there would be a juror who's going to side with life over death doesn't make them all that the kewl you're your honor what we're talking about under strickland is whether we have confidence and the outcome of the results of the proceedings and so basically if if one juror comes to the conclusion that mr johnson's life is worth saving has some redeemable qualities th mr johnson would have obtained if that if this would have been an eleven to one case mr johnson would have received hearse relieved because this happened after after the the ring decision in two thousand and two the case was final  t there is we would agree that there is a possibility there is this two edge sword of some negative damaging information coming in to trial with the presentation of the th but this is a there was a pet scan presented at trial and this shows that his frontal lobes are so damaged that he has extreme difficulty and controlling his impulses so all these acts which are detailed in the police reports from a law enforcement officer who went there with a mission to get incriminating evidence against israel maher johnston it was trial counsel's duty to look at that evidence and do separate interviews and try to come up with beneficial mitigating information that was connected with di and bush and we stand on the record that was presented at the evidentiary hearing this was largely positive and ms ms bush did not affirm all these negative things which were detailed and the police reports and have tried counsel has taken that st step in investigating he could have presented this testimony to the court and i want to bring up i can't show you an actual case law which says that ok truck counsel is an effective for failing to present evidence that the defendant might have saved someone's life i don't have that case law for you but there was a case out in colorado i talked to a colleague in preparation for this or oral argument and the case was sa eight and and in that case this was a prison cell this was a case where a prisoner was disempowered and the in trails were basically strewn all across the cell doors very gruesome very disturbing case and that case the judge the jury came up with life there was at least one juror who said you know the mitigating evidence that this defendant in this jail cell who committed this horrible horrible crime sided with life over death because it included mitigating evidence that the cellmates the defendants had save someone's life trial counsel called someone from guam an associate from guam and this person said yeah we were out in a boat and the waves were so high and the boat cast capsized three people died i survived i credit this defendant in colorado with saving my life and it so affected that the judgment of the jury who sat and deliberate his face his his fate that they came up with a life sentence this is not that particular gruesome grotesque crime here in this particular case so and this is a federal case out of the  circuit so i see i'm down to two minutes but i just want to say that it can't get very much more mitigating in a case of life or death to present evidence that that the defendant saved someone's life and that's what that's what diane bush told us at the evidentiary hearing that she credits him saving her life and i it just doesn't get any more mitigating the state courts unreasonably discounted this very very powerful mitigation and i know that i have a very high burden but  under miller l cockerill even in the context of federal hate b s deference does not imply abandonment or abdication of judicial review deference does not by definition pretreated trued relief and a high burden that we have we have to show that not just the decisions were braun but they were unreasonable and i think that this court doesn't have to go very far to say this is absolutely deficient performance the state courts were not even willing to go that small step to say that there was deficient performance there was absolutely deficient performance in failing to investigate this yes there are a lot of negatives but there we feel that the positives far far outweigh the negatives and i had trial counsel done what post conviction counsel did which is to fully investigate these whole scenarios all this negative information they could have turned this into a positive diane bush again likely would have not affirmed at trial all the negative things contained in familiar familial duties to protect diane bush they felt like who is this outsider and who is this man and they were so ready especially when the t v especially when the t v came on and he was shown to be withdrawing money from account but rhythm or johnston once he was on television became absolutely public enemy number one it was tragic council's duty to investigate and find mitigating evidence they failed to have a different opinion of the florida supreme court yet cracked lack of lack of prejudice ok and that was as to they didn't mention the ten thousand dollars that was asked at the penalty stage i guess right they just mentioned the  mitigating aspects of the saving that of the life but yes the florida supreme court very very short paragraph denying both guilt phase and penalty phase going on but there's not even one mention of the ten thousand dollars and we feel that that  good afternoon timothy freeland here on behalf of the state of florida could you help us out a little bit on moves on her on mr bush's pre trial deposition i cannot it  there's no indication anywhere of whether the defense was present during at there or anything having not seen the deposition so i can't speak to that but no i mean during the pre during the state collateral was there any reference anywhere as to whether the defense was present it seemed strange to me if the defense was present somebody wouldn't have pointed that out because trial counsel at that time was question fairly extensively about what you know about this witness what do you mean you've never heard of her and so forth and so on if he had been there we would have known i have no evidence that there was a deposition taken of this bush prior to trial if a cushy says there wasn't that she didn't have any memory she has direct election that is so i can only conclude that the only evidence that they have of what happened with mrs bush before trial would learned in the law was doing that i haven't seen the deposition on so i mean what what and it may just be that it doesn't exist that's what i'm thinking it a pretty trial deposition in my opinion i don't i haven't seen it i don't believe it exists if certainly it is not the practice in florida for the state to have private depositions we wouldn't call it is their position in that case we would say we interviewed this witness who was a state's witness that's the way we do things if we're going to have a deposition we invite the defense to participate and they can cross examine your whatever they want to do but i don't see that that's what happened here thank you it's apparent that there was a some sort of deposition which but but you've have you sound like you feel like maybe there actually was a deposition only because the prosecutor pruners referenced it in that way that there was a deposition but it is far as what we know about that deposition all we have is the prosecutor reading from his oh no it's read in a and the testimony from mr bush was along i don't i remember that either right well that's correct but i would think that at that time if mr printer was reading from notes from a nonexistent deposition this would have invited an objection from opposing counsel saying hey we were never at any deposition there was no deposition but nothing of that sort happened so i mean again we're kind of looked for any deposition and tell them so that's consistent with your understanding of the record yes i would love to be able to read from that deposition because clearly had some interesting things so let's let's talk about bush would have been as helpful in guilt phase would have been to dispute or call into question the evidence of motive the financial motive which was one of the two reasons that the prosecution used as the reason why this wasn't any a relationship between them sufficient to call into question his the fact that he could've allegedly stolen this ten thousand dollars but didn't i'm unclear on your answer i thought you said that the florida supreme court didn't address the guilt stage ineffective assistance client they did not and then i ask you but your brother over here says they did not both climbs for lack of prejudice and you said yes that's right those two statements after them and i may have missed for them forgive me are inconsistent what i'm trying to get at is that the florida supreme court did not specifically address the ten thousand dollars claim that that ten thousand dollars claim would not have helped the defendant in his guilt phase because the two just don't the timing is off the two don't correlate even if the defense had brought we have to also look to the factual findings of the trial court with regard to whether counsel was even asked to call day and push as witnesses significant to this argument is that trial court is finding of instructions from the client are relevant particularly he says don't call mom but what i'm talking about is it's not particularly relevant that the defendant doesn't say call this witness are not call this witness other than if he says call this witness you need to ask him why and check into it am i wrong about that i thought counsel at independent duty to investigate council certainly council does have an independent duty to investigate the part of their claim was that i know they put that in there and you know you can overplayed anything but i'm not sure they approved all right then so let's talk about i mean then that that indicates that the defendant was given again it looks to me like what what those notes come from is the defendant was given a list of witnesses these are the state's witnesses and you know state in a homicide case might  hundred witnesses and if you go through the notes in detail he lists he talks about many many many witnesses including day and bush and it appears to be i think the trial court interpreted it this way that  counsel defense counsel said to him here there's a list of witnesses the state intends to use tell give us your notes on what what you want to do about these witnesses and how we can address them so he does talk about diane bush she talks about how you should interview her but you record he talks about her how he helped her out took her child to the hospital how he went to the strawberry festival which is a fair in plant city that they have been very aware so there's there's a number of other witnesses in here that he also talked about and as far as we know there's been no complaint that none of those witnesses were called so in terms of prejudice and guilt phase there really there isn't any in the four it's cream court correctly rejection relief as to that so let's turn to the penalty phase issues now this witness day and bush was fraught with risk if they attempted to bring her in as a penalty phase which is to assist we knew the court knows what her testimony would have been and this man helped me in a crisis and he saved my life and this is what she testified to in the post conviction here in the the notes of the detective tailored of her interview with  will diane bush is the one that turned him in this is the man who she later claimed saved his life but as soon as she saw his picture up on the news saying we're looking for this man she recognized him and she called the crimestoppers phone number to to turn him in this does not sound like someone who is grateful for this man to save my life i would suggest that maybe she had over time and over time she may have had she just said i don't remember something that's correct i don't remember saying that and it with regard to the prosecutor's suggestion that she had been involved in an experienced a  unusual sexual encounter with the defendant it's interesting that she said i don't remember that and then subsequently during the same hearing she said if that happened that's not that unusual so it seems like there's some waffling on that issue as well oh this isn't in i sit here in reflection of the encounter that i had with mr johnson ten years ago sexually to this day that encounter is not unusual i feel it's kind of the norm of a lot of gentleman so i just wanted to add that right there is just a bit i'm talking about you know it's seems like she said i don't know if that ever happening but then later maybe she does remember that ever happening and that that's yeah that's exactly the statement i'm talking about now if we're talking about penalty phase we have to to look at i'm looking at the the sentencing order that you know the death sentence you quoted from the trial court prejudice in the defendant's modus operandi was to covertly approach women as they exited their cars near their residences swiftly overpowering them and the victim and transport the victim to an isolated area before assaulting that he that medical examiner testified that mr johnston strangled this woman to death after engaging in what is clearly a humiliating action is found nude she was beaten there was bruising on her belt on her that she had strands of hair i'd strands of grass in one of her hands which this is the last thing that she did before she died heinous atrocious and cruel yes  addition you know talking about the mitigation that was presented this is not one of those cases like in williams or wiggins or even sears where there was a whole lot of other mitigation that he could have investigated but he didn't present they established one of the state's statutory mitigators and that's pretty strong and that's pretty good if you're able to do that as a defense they put on four different medical experts who testified in support of mitigation and that the trial court found that the capacity of the defendant  appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired and the court gave that moderate weight in addition to that there were twenty six other mitigat that the defense attempted to establish they attempted to do this by presenting testimony of the victim's family i mean the defendant's family his mother his sister through his ex wife all of whom testified in his favor significantly the evidence to diane bush would have presented that he was a loving person that he helped her in a time of crisis we know that there is some risk involved in that because of these other negative things but the defendant's ex wife testified to fundamentally the same thing and the trial court found that that had been established and gave it slightly so i don't know when we compare its ruling on this was reasonable reasonable application of strict but it doesn't seem likely that if they had put in damage as a mitigating witness that they would have been any change in the outcome of this case if the court has no further questions pot what was the theory and i haven't read the cross examination that was it's been superseded as probably stage testimony but why did he want to make it look like she had been assaulted instead of accidentally killed that's very perplexing to me your honor i think it goes back to the very impulsive nature of very large johnston shown with the pet scan he testimony he's impulsive on bringing that up i'm glad you brought that up because i want to point out that trial counsel there was that there was a problem but they there was real question whether they're going to call mr johnston and we had  testimony from dr hooper who was called from a seminar and he testified at the evidentiary hearing said go ahead and put him up on the stand basically to show remorse well there was a very there was a dichotomy of testimony from m lippman when they said we did not want him to testify that's the last thing we wanted to do so you have trial counsel here there's a real disagreement about whether there was decision to let him testify or not testify speaking of his testimony i want to say that instead of presenting marginson which we we had a claim that he should not have been presented his testimony was absolutely awful take that out of the equation and set up an upgrade amar johnston let's say they investigated diane bush presented her testimony i would say that there would be a reasonable probability that at least one juror is going to vote for life over death if you take out ray johnson and introduce diane bush basically the purpose of bring them are johnson's testimony was obviously to show that he had some kind of remorse it did not come through it was awful it was it was a surreal experience in the courtroom i wasn't there but i read the transcript and read them are johnston from the stand looks out to the victim's mother and says i'm horribly sorry  pruner stands up and says he is not to address anyone the audience or the family and the judge said basically sustained so this was a crazy situation as it is usual for us is not whether if they had not called him but hadn't called bush a question is whether if they had called bush and i'm suggesting that if you present the testimony diane bush you don't need to grapple with the issue of should be present rhythm of johnson's testimony it should not have been presented i want to talk about briefly because there was a question about the evidence and whether it should present been presented in knowledge of trial counsel but enron pilla that the courts basically said all you need to do is open the court file to find mitigating information all the truck counsel had to do was look at the discovery look at the notes from from read them or johnson and i had an exhibit fourteen where he said a lot of history here she needs to be interviewed by herself would no one else in the room she will tell the truth i stayed with her for fifteen days and nights and saved her life three times so this is not a situation this is that complete opposite of the situation where the defendant may have thwarted the investigation of mitigating evidence are johnston was trying to enhance the investigation truck counsel failed to follow up on their duties why didn't he testified in that h that's a good question your honor i can answer that bad character evidence shouldn't come into a penalty phase and that a lot of this information is bad character evidence is interesting when jay pruner when he was reading from his notes and saying he beats you he called you names he threatened you accept her etc and then when ms bush said you know this is the norm jay pruner step is that this would never see the light of day and at a trial well we would suggest that j pruners notes which documented this alleged frightening situation should never see the light of day and in a penalty phase there is unreasonable finding the state courts that well i think the th deficient performance is clear so but if a if a defendant were to say that the police burst into my house and took this evidence the defendant doesn't need to say you need to file a motion to suppress trial counsel needs to know that as recently counsel file a motion to suppress there's a lot of post hoc rationalization here it's all in the record primarily from generated strato i just want to close respectfully respectfully your honor that there has been thirty four years of sustained caldwell violations in the state of florida