afternoon good afternoon your honor thank you very much it's a pleasure to be here i'm tim sweeney on behalf of tim coleman and with me is my co counsel john parker i would like to reserve five minutes if i could early  well this case the capital case is about the ravages of illegal drugs and drug crimes and how the criminal justice system struggles sometimes very poorly to dispense justice in these cases especially in communities like this one springfield ohio plagued with poverty despair in the glass and these issues are presented in the context of the two issues we have here which is in effect of assistance of the sentencing phase trial counsel in this capital case and the brady claim the failure to disclose the information in that aspect of the claim i want to start with the mitigation of this case about prejudice it's about prejudice  was the ineffective assistance of these trial counsels prejudicial mr coleman in our view there's no question that it was the jury here was charged with making a moral judgment whether this at the time twenty seven year old man should live or die for this crime in a case where the evidence of guilt was very weak and where the aggravation wasn't particularly aggravating in the grand scheme of capital  cases you had a mitigation phase performance in this case which should i think for people who have seen a lot of these cases they know the judges on this court certainly have and was pitiful weak nothing was done for this this man in his mitigation phase in the fight for his life to try to morally present an argument to spare him to ask the jury to save his life what was done what was done you had a you had the transcript here is really pretty pretty amazing because it's three or four pages the mitigation phase of capital case three or four pages and you have one witness you have the with the old man the dad you know that the certainly the dad needs to testify at a minimum and if you read the transcript it's one question in effect one question which is effectively nothing one question to the dad was the mitigation phase performance in this case in a capital case in a case where you had a lot to fight about i mean this case was weak to begin with we know the courts have said the evidence is overwhelming and the evidence is compelling but under any reasonable assessment of the evidence in this case those are on reasonable determinations of the facts seven this was an overwhelming case this case was a weak case it wasn't a case of overwhelming guilt by any stretch of the imagination when you have steven l casler as one of your witnesses this was a weak case and there was a lot that could have been fought about here in a mitigation  properly developed and presented it had the dad with the one question but didn't have you didn't have the mom you know that alone that alone for anybody who's been a trial  matters the mother getting up in front of a jury of twelve people and saying i love my son and i don't want him to be executed will matter to one juror and that's all you need here the assessment of prejudice is a one your standard is talk about it which is what happens when you have been a witness who's unprepared you tell the witness which is what the record shows here the witness was unprepared the lawyer spent no time with him that's unconscionable a capital case i mean come on we  so many capital cases in the last twenty years in the th circuit and the court will grant relief this case is johnson gary johnson this case is double williams those two cases are similar to this one victim cases there are cases where the crimes were relatively now don't need to be offensive to anyone here but all relatively routine cases of aggravated murder the kind of aggravated murders that the prison is still filled with people who have committed hundreds and hundreds of people none of whom are on death row in those two cases johnson in williams this court granted relief because they found prejudice because they found that doing nothing which is what happened in gary johnson is case and donald williams case the capital to find it was prejudiced because there were things to talk about there were family members who could have come in and said i love this man i don't want him to die there were children who could have testified about their father there were mental health professionals who could have come in and testified about the mental health issues that plague that particular defendant johnson in williams controlling in this case in our view because they both found prejudice on records at least as well with this case i believe is even stronger than those two cases and yet the six circuit granted relief in those cases capital cases out of the state of one victim aggravated murder cases routine aggravated murders and those cases are controlling what do the district court do the district court in this case relied on a case called morale us but it relied on the dissenting opinion it cited the dissenting opinion in support of its argument the prejudice hasn't been shown that's the wrong place to be looking st of all morality got really we should look to the majority opinion and in johnson and williams are the cases that are controlling here because they are the kinds of cases showed prejudice that can happen in this case and that's really what the problem is here you're asking a jury to make a moral judgment and you're asking them to do it without telling them anything about the human being they're being asked the judge that's always in my view is always going to be prejudicial as long as you can show some things that were omitted it doesn't have to be overwhelming because you're only trying to persuade one person that's the standard it's a one jury standard and that standard can be easily met when you look at all that was omitted here i mention the mom because i think that's despite i think that alone would have tilted the scale i think you're already teetering here because it's such a weak case of of aggravation that if you would have the mom you may have tilted that just a little bit just enough to persuade one person that's all you need is one but you don't need the mom indicate that she would be willing to testify if she'd been asked well here is what happened your honor she was evidently in the courtroom that day but was too emotional according to the record to come in and testify and so she didn't testify she simply on the dot during the sentencing phase during the sentencing phase correct impose advection the the guilt phase that she testif mother was physically or emotionally unable to testify at trial anyway so what was defense counsel supposed to do and she was unable to testify what was with the supposed to ask her to german so she lawyers as trial counsel who don't prepare their witnesses who haven't spent any time with them who haven't developed any kind of group or con since with them this is inexcusable that you are the trial lawyers in a capital case and the mother is unable to testify if that doesn't happen you darn well better be asking for a continuance or you better be doing something to preserve that testimony it's inexcusable be in that situation where your client's mom is unable to testify because you were the lawyer failed to do your job to prepare that woman to be ready to do this on this difficult day no question it's going to be hard and we all know that if we're parents we know how hard that would be for the mom to get up there in that situation but she had to know that the judge would have granted a continuance don't i certainly should've certainly should have granted the delay or a five minute break or an hour break or whatever it took to allow that woman to testify that was critical the failure to do that is unconscionable in a capital case but that's not all that wasn't done you had you had a sister who would have testified and to your question judge bush did testify and post conviction that yeah i'd be willing to testify and here's what i would have said and and she listed all of that and some of those things i think would have been helpful and might have tipped the balance but you also had the sister he had sonya sr who did not testify but would have been would have provided some some other information about tim tim coleman he would have had the mothers of his children that was an important part of his life i mean people may scoff at that you know he didn't marry another so what he care for those kids that would have been important perhaps to one jury the jury isn't comprised of of everybody who's been the you know who have been the law school or who are people who have who  lot of people on this jury are just regular folks and they might have been persuaded by the fact that this guy had four or five kids that he loved and he took care of them might have been persuaded by the fact that he was trying to work a job at fox  lite now it's a factory job not a big shot job but he was trying to work that job at fox like the jury didn't hear about that why not they should have heard about that they should have heard that this guy was trying to do some decent things in his life was involved in dealing drugs that certainly was the argument that was the case here but that doesn't make him a murderer and even if they believed he was a somebody who killed there were arguments that could have been made in this case that would have humanized him that's the challenge in a capital case because you're trying to humanize your client you're trying to present to the jury reasons to spare his life to make them see him as human being not a somebody that they've already found guilty of murder there are ways to do that if you're persuasive and if you're an advocate the duty of an advocate is to advocate it's not just throw your hands up and do nothing the mom is in the hallway oh well i guess what we can do about that you know you've got to be prepared you got to be committed you've got to advocate it's your job in a capital case you're fighting for this man's life he's been sitting on death row now for twenty two years for a crime he says he didn't commit and he may very well be right who was there to fight for him it sure as heck wasn't these lawyers and a fair assessment of the job they did here you got a given enough deficient performance no question in the in the in the sentencing phase deficient performance no question that's johnson know he was found guilty of a terrible crime but there were things you could say about him call it might humanized him the courts always talk about the mother's testimony helping to humanize the defendant people that love him that testimony of thing can hurt you so you've got to do that you've got to make those efforts and you also have the psychiatric stuff you've got psychological evidence in this case is pretty compelling you know the courts it looked and they said well but it's the psychiatric evidence just fits within the state's theory of motive that he was somebody who was anxious conformity to the expectations of others and he was rigidly moralistic him and he was you know see things as black and white he blames others for things he does and he was diagnosed with this compulsive personality disorder the arguments from the courts have been well that's just consistent with the state's theory of motive so what he's already been found guilty doesn't matter if it's consistent with the state's theory of mode if you got mouse explain to the jury if you found this man guilty we don't agree with you but you've done that all right now here's some reasons why what you found happened be very well it happened here some human humanizing reasons that might make sense as to why this happened it was smacking them all right in the face one of them was you know that the notion of a strong provocation here the defense lawyers in this case chose to rely on strong provocation and arres as the mitigation theory they wanted to pursue what the best argument is cut the victim here who somebody who loves you think about that the victim somebody who cares about you loves you and they betrayed you in this kind of a way state's trying to make it seem this is a little more complicated there's a little bit more of a more out of the moral judgment here becomes a little different when you have somebody who who betrayed you in that way it's not to say the woman deserved to die none of that but it helps to explain why somebody with compulsive personality disorder might have committed a crime like this this would have all come in through the psychologist that sure right  what what's in the record in terms of the miss ability of that opinion the opinion about the compulsive personality disorder well i think that would have come in i mean it i don't think there's a i don't think there's been an argument made that that would have come in i just think the arguments been it's not helpful and it would have been consistent with the state's theory of of wife things happened in my our response to albert slandered i'm sorry i think it would there be a chat was anything about it being challenged on that ground there was  no no here's the issue i think you may be thinking one of the arguments that has been made is one of the things the doctor might have testified to is this person is not violent that's another point though that evidence would have come in i mean not to prove that he didn't commit the crime could have nonviolent people commit murders but that goes to strong provocation that evidence would have been admissible had an argument been made for its admissibility that was consistent with the theme of mitigation which is the theme they chose to pursue which is that there was to russ and strong provocation they just pursued it so in a plea and so incompetently and without any care for their client that evidence and that argument was persuasive because it humanizes t coleman this case is about two people who knew each other and cared about each other and evidently loved each other according to her this is her coworkers the victim seeing him oh i love you you know you're my friend we know they had a we're in a relationship of some sort some sort of sexual relationship he was even supposed to go see or that night later at two in the morning so they were friends and they were lovers and she betrayed you know if you're a person with compulsive personality disorder and also a person who's nonviolent and not inclined to commit this type of a crime or to be a violent person doesn't this speak to the strong provocation the strength of the provocation that would exist here and that's a mitigating factor in ohio that's the statute that mitigating factor comes from the statute that's be to the trial lawyers got up and closing it so we're asking to reliably to the house supreme court on direct appeal yeah we're looking to be too because that's what you guys looked at would you the trial lawyers argue but you know they didn't do it they didn't do it i mean what did they do with you do anything for this guy and there are things you can do for you in this case you know you're you're trying to humanize a man a human being and you try to persuade a group of jurors that you ought to spare the life and boy there was a lot you could have done in this case in the proof i think of the putting is just in how weak the case is because any assessment of prejudice in this case or in any case and this is strictly has to be seen through the prism of how of how strong or weak the case is strickland says that a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with the overwhelming record support that strictly they also make th guns those are capital cases you know this case is weak i don't have to go through it again and we went through it in the brief but the evidence against tim coleman was jailhouse snitches who said he said certain words and people who are vulnerable people the strobes of women who jing strode to their relative was also a suspect in this case they were drug user and these people were all moral people they were easily persuaded to say things that they may not been true that's certainly an argument so an argument could have certainly a lot of them all right they might be snitches and they might be not the most outstanding people community but he's got i mean they're the prosecution had a lot of witnesses that well at his statements about him saying i'm going to kill her and then statements that i did kill her and then they've got the witness who is with them walk down the alleyway with with the victim right before killing him i mean you've got a lot of statements circumstantial evidence you don't have direct evidence you don't write and i think you know having a lot of something doesn't make it good out it is still that all of you can have ten people coming in and seeing the earth is flat right but they're all wrong even though there may be ten of them and i think that's the problem here you really do have in the witnesses here are are worse than weak i mean this is the extent to which the failure to argue and to try to humanize the defendant to the extent that they have prejudice is him it ought to be a factor to be considered including the fact that from the very beginning he there's no evidence against him other than other people saying he said stuff that is it and then you have some of the other string things that i think you could consider these days showcasing showing up two weeks later as a capital case the police officers saying they're out there in the hands and knees going through the snow with metal detectors and they didn't find the shell casings but two weeks later there they are shell casing sitting on the on the snow you know on i mean finding the clothes in the doghouse three months after the crime nobody even know that's linked to tim coleman none of that's linked to this crime nobody ever asked him to try that stuff i mean this case is pitifully weak it's not to say this is a jackson challenge it's not we're here on a prejudiced claim in an ineffective assistance of counsel and in a capital case and if you look through the prism of prejudice and you say ok could one juror have been persuaded to spare this human being this fellow man from death had somebody thought for him and argued for him and babies points that i'm making right here today would one juror have been persuaded oh my goodness i think yeah i don't think there's any question one juror would have had persuaded to say y we found that he did this but the different question the moral question about whether he should die for this that's different we think that should not happen and we're disagreeing at least one of us does ever seen the movie and former great movie john for it sort of capture some of this the fraught humanity of the difficult moral questions about informers those arguments were made here but that really humanizes to mccomb when you look at the psychiatric profile he has that he was convicted of killing somebody who loved him because of this patrol you know think about it i mean this these are two people engaged if the jury is believe in geisha in the same criminal acts they're both selling drugs and what the victim did is went to the police and behind his back set him up so he would go to prison instead of her so her five can't have a a mother at home and his five wouldn't their father be in prison you know for a person with his psyche after post profile compulsive personality disorder you know the strong anxious conformity to the expectation those are the kinds of things matter i mean we know this is human beings we know what persuades juries we know that kind of stuff would have mattered in the duty of an advocate as i said at the beginning is to advocate and if the court looks at the totality of all the omitted evidence  stuff that could have been present at the psychologist the work rather workers the children the mothers that love the the mothers of the children who love them and care for him and risk it and liked him nonetheless his own mom you know cultural expert who could come in and talk about some of these issues all of that the totality of that in the question if the question becomes which it is the legal question is there a reasonable probability that one juror one only one would have been persuaded to spare this man's life had that been done and had the advocacy been effective that somebody gave a darn about this guy and hope he lived he answers yes one juror would care enough to say no or not to kill this guy for this crime and he would be on death row twenty two years later for a crime he claims he didn't commit he may very well not have committed you know how does he ever do that becky doesn't and that brings us to the brady claim only have a minute or two but the issue there lawyer signs that says i committed this crime there's some bit of detail detail that he otherwise probably wouldn't know the evidence on the record is that mr bowden the lawyer that got the affidavit then went back a couple weeks later just to make sure you no to terminations of the facts it's an unreasonable to terminations the facts should have gotten a hearing the court should have either the state court or the federal court below should have allowed a hearing to hear what mr sapp had to say and hear the contrary evidence that he's lying because that's the thing that's troubling about this capital case you know judge i mentioned all these witnesses these snitches and all right i don't there was a lot of them but but tim coleman's have witnesses like that too on his side you trial i think i think that's a due process clause thing i think we can always begin an end there but i think pennsylvania the riches it is a hopeful case on that i think that case which is one thousand nine hundred and eighty seven u s supreme court they talk about brady the duty to disclose is ongoing it extends to all stages of the digital process information that may be deemed immaterial upon original examination may become important as the proceedings progress you know i think that suggests if not hol think that is a due process issue i do believe that's what brady emanates from it's a due process holding i believe that's right i understand the osborne case i think the i was born case though that talks about when the case is closed well i mean if you're because  trial is over we'd almost have to look at whether this if you call it brady evidence would have had an effect and is his appeal process rather than the trial process well it may normally brady you look at could it would it could it had an effect on the verdict well the verdict starting there are so i think you almost have to say with this evidence have an effect on his appeal had it been timely disclosed his appeal that seems like a different different analysis on what i think the analysis still would be would it have made a difference to a jury and i think i'll be no could it because the jury already made the decision and this evidence wasn't even in existence it's sort of like the same thing i don't trust my time so i know if it's ok if i it's yes but it's sort of like the same thing we do or we're asking you to do in the context of the in effect of assistance you're being asked to assess prejudice and what impact it would have had on the verdict it's the same type of and  the district court quickly determined that in me in this case mr coleman was not entitled to relief on his ineffective assistance of counsel during mitigation phase claim then make claims that there was a constitutionally deficient investigation presentation of mitigation evidence in the district court was incorrect in their application the standard for the court did not wholly ignore the state courts opinion they were dead standard under de one or excuse me d to anyone in substituted their own judgment for that of the state court there's nothing in the record that shows that they met the burden of clear and convincing evidence to overturn the state courts reasonable decision that the standard of reasonableness and then that deficient performance prejudiced them in their petition the court must also indulge a very strong presumption that the council's conduct falls within the wide range of reasonable professional assistance and the judicial scrutiny of counsel's performance must be highly deferential in a fair assessment of attorney performance requires that every effort be need to eliminate the distorting effects of hindsight to reconstruct the circumstances of counsel's challenge conduct and to evaluate the conduct from counsel perspective at that time this is a doubly definite deferential standard the question is not whether counsel's actions were reasonable it's whether the state courts got it right whether that adjudication resulted in a reasonable decision under clearly established federal law or it was a decision based on reasonable determination of the facts presented the district court found that the trial count was deficient on the problem the performance prong of the test and we disagree for the fact that the trial counsel hired an investigator which was dr i'm or investigator which was mr belcher not assigned to the mitigation but that investigator investigated the facts of the case and found some inculpatory facts rather than  amer was a clinical psychologist in that that personality disorder that my colleague spoke of is one that was found to be inconsistent with violent conduct that caused him to not take responsibility for his actions and to blame others for them in fact it typically he found that he that mr coleman typically does not assume responsibility for his problems and tends to blame others which is consistent with what he did w melinda stephens the victim in this case and the district court below cited the ohio court of appeal during post conviction relief in saying that the record does not support that further investigation would have produced produced any more mitigating this strong expectation to conform me in this personality disorder that my colleague spoke of would likely not of assisted mr coleman in his mitigation because the person that got up and spoke on his behalf his father mr coleman spoke of a loving childhood with an intact family a sister and a mother that were in his life and all of these things could have been held against him rather than acted for a juror to vote against the death penalty the record also reflects that the it was a strategic decision by trial counsel to not call dr ammar to the stand likely because this testimony would not have been productive in mitigation it is very possible that the jury could have found that they would hold this information against him rather than for him in voting for the death penalty he used throughout his his trial he used the good to good guy defense he's a good guy that didn't do this he's actually innocence and just disregard the overwhelming amount of evidence that was present presented against him and that the jury considered in convicting him all of that evidence was also an admitted during the minute mitigation phase and again this was a strategic decision that's made on the record not in the presence of the jury but to the to the trial court and the trial inquired to counsel if this was a decision that he had made consciously and he stated it  additionally the trial court during sentencing stated that coleman's background did not contribute to his becoming a violent criminal that this was a conscious decision that he set his own standard of performance acceptable behavior in choosing a criminal lifestyle for all those reasons we believe that to destroy district court below decided wrongly in saying that cumulative evidence that the mother would have stated the same things that the father did he came from a loving household he was a happy and energetic child and that his conduct was not indicative of his background and growing up in deficiency of the performance because of those same like council could have done a lot more but the focus we have i guess whether assuming there was deficient performance or cultural probably should have done more was  way have stated that mr coleman was not prejudiced by his trial counsel's performance again this is a doubly deferential standard in we need to recall that under ed we have to see whether the state court was reasonable under the clearly established law or if the conclusion was real reasonable as it applied to the facts the strategic decisions that were made by trial counsel were reasonable from the factual record in all state proceedings this is consistent with their defense of actual innocence that he was a good guy this was a blip on the screen for him it would be inconsistent for him to stand up and say to his actual good guy defense for him to stand up and say you know if even if you believe i did this i should be mitigated against the death penalty for all these reasons  in the district court use the my alice opinion as my colleague stated to show the difference in the medicating evidence what would have come out in mr coleman's case is that he had two parents he had a sister he was in a wedding home he had family he had a brother that committed suicide a sister that was institutionalized in facts such as that all of these facts were not presented in the case and likely would have helped him in the medication where is the jury could very well have held mr coleman's loving family against him in holding that he consciously acted in this criminal fashion in murdering w betrayed that would have been the justification that would have been offered what do you have to say to that wouldn't wouldn't some of this testimony have gone to that so the testimony the words position is  that it wouldn't have gone to that it would have shown that he was acting in in the same same way that the clinical psychologist said putting the blame on others not taking responsibility for his own actions saying that the victim in the case stephen's was the one that that wronged him rather than taking it is account for is his drug dealing past which is what she was intending on testifying against him and as my as my colleague said you know there were only two of the seven men again factors that were talked about in the jury instructions the conversation between trial counsel in the trial court regarding the strategic decisions occurred before the jury was instructed on the mitigating factors so the dialogue considered the other things that could have been brought out by the trial counsel in trial counsel stated on the record that it was his professional opinion that the defendant should not testify that the defendant himself should not testify on his own behalf which is a is another part of the mitigation that did not occur additionally the mothers of his five children could have testified however dana strode one of the three women would have likely testified on cross examination to his propensity for violent conduct she had been shot at him which came out in a shot at by him which came out in a post conviction relief affidavit of one of the investigator or one of the detectives in the springfield police department its position is that all of this information that could have come out would have been cumulative and and thus would not have prejudiced him in addition to the fact that the jury all of those jurors could have held the facts against him and said you had all of these opportunities that most offenders wish for in you chose the criminal lifestyle that that got you into this position stand because she was too much and distraught to testify in the preparation of the witnesses that my colleague talked about dr ammar was prepared to testify he again billed several hours spent eight hours with mr cohen himself and didn't did not testify because the trial counsel made that strategic decision for him not testify the deference given to trial counsel for their strategic decision it is great another case in the th circuit that is similar in strategic decisions is the cowans case in which little to no mitigating evidence was presented as a strategic decision made by the defendant in that case and that was upheld in the hay vs under the deference on his great claim because no brady exhibit issue existed at the time of trial brady the brady duty is not on going that is the mr coleman's claim is that is on ongoing seven the interview occurred two months later on april nd and rd one thousand nine hundred and ninety seven and then the letter the undated very big letter that is referenced in the briefs came out in the newspapers seventeen months later and mr coleman had that in his possession the coleman had the opportunity in the ability to get that information and has not produced it i would the one's position is that neither the interview nor the letter  criminal activity is in the same general area and again it's the inmates judy to to present evidence of to bolster his brady claim and he has not done pending any further  tory material i don't know that there's case law to say that it is a due process claim but i think there is there probably is a duty to turn over that information but the facts in this case are that it's not it's cool but tory and it's in the hypothetical situation to worry that there would likely be a prejudice in and i the warden the warden position is that it's not a brady clean and they do don't win on this but the hypothetical there's likely a duty to turn that over whether that's a legal duty or brady claim it is a different question your honor and as a former prosecutor there's probably an ethical duty if there is exculpatory information but in this case there is not in any any further questions all going up with we the warden would like to ask this court to uphold the decision of the discrete district court and find that this inmate is not entitled to hideous relief on either of these grounds because he does not overcome the  march rd so you're still within thirty days there's also the opportunity file a motion for a new trial which would have brought this in as well you know you're really right up there i mean this is not your time to file your notice of appeal i don't think it even ron if it pat it was right at the right at the right about there so this is this is a significant thing and here's the thing that's so troubling about it is that no one's taken the time to hear from sap you know i mean there should have been hearing here that's what should have happened and you know i don't think coleman would be here making an argument if you had a hearing and after hearing that you've been ruled against him or ruled in his favor who knows what would have happened here but sap you know made a pretty detailed confession and it's not incredible to believe that sap may have killed this woman you know he's killed three or four other people you know and and he's from springfield unease in the drug culture and he's very well could have done this to him tim coleman's maintain his innocence from day one so that's that that's an important issue let me back to the to the issue on the on the ineffective assistance of counsel i've heard the argument that you know no courtis found that this was prejudicial you know we're here in this court though this is the circuit court of appeals this is the six circuit court of appeals this isn't a you know an important powerful court procedures court gary johnson's case he didn't even get a c l a in the district know this case is like it's like johnson's it's worse than johnson because he didn't do anything here and there was a lot to fight about here as i mentioned before the language of the court and gary johnson's case is helpful because they talk about the omitted mental health evidence which is kind of similar here as a personality disorder in gary johnson's case in this case it's a compulsive personality disorder a compulsive obsessive compulsive disorder kind of a comparable type of mental health diagnosis the court said the fact that he suffered from this quote although not absolving him of responsibility for his crimes helped explain why certain circumstances leave would be viewed by the petitioner in certain ways and would prompt certain abnormal responses as exactly the kind of argument that could have been made here with the testimony of dr i'm or about tim coleman's unique fascinating as a doctor called it fascinating psychological profile that's what he said in his affidavit in postcondition that this man has a fascinating psychological profile and he really wished he could have been able to testify about it that's him that's  to had he done so he would have been able to make the kind of points we're talking about here that would have persuaded just one person and that's the point the court made this court made in johnson after every other court said no prejudice and after the district court said i'm not even giv a this court said nonsense this would be prejudicial and here's why and this case is no different tim coleman's entitled to the same relief that it gary johnson got and so just to sum up you know we have a young man at the time was twenty seven years old he was trying it had a job he had injured a shoulder you know he had these mental health challenges that made you know kind of uniquely might have made him susceptible to this type of situation he had a loving family he had some good evidence about how he behaved in the jail you know he he had testified about one that she still cared about him despite all of this he had all of these things and none of that was presented the jury didn't hear they weren't able to ever accurately gauge his moral culpability for this crime and that's a shame that's a shame because if they did at least one of the said even though we think you did this because that's what they had concluded you don't deserve to die from this and he would be on death row and that's the the the relief he's entitled to he's entitled to we believe respectfully from this court that the court grant relief reverse the denial of relief and order that the state provide a new sentencing hearing for this for this man and if there's no questions thank you are the questions judge batchelor well thank you all right mr sway thank you i  afternoon the case will be submitted you may