it please the court and it is let into julie you and i represent helen eighty eight where in this appeal on appeal to this court we've raised two issues two claims of air first the ineffective assistance of trial counsel for failure to object to jury discrimination during jury exhuming gender discrimination during jury selection and then second the insufficiency of the state's evidence to overcome the mis abers insanity defen i intend to devote the both bulk of my time here today to the first issue but i hope to reach the second issue of course i'm happy to answer questions about either issues this case comes before the court under twenty eight u twenty two fifty four is a rare first phrase for sufficiency of the evidence claim on direct appeal and then she first raised her ineffective assistance of counsel claim on state post conviction the state courts a nod both of those claims of course which is why we're here today but the state court ruling is we're we're involved in an unreasonable application of clearly established law and reasonable terminations of the facts or both for that reason there is no bar to this court's grant of leaf turning to the first issue presented on appeal the prosecution's discriminatory use of peremptory strikes against females during jury selection and trial house's failure to recognize it ha like to start by emphasizing that on both accounts whether the prosecution discriminated against females and whether counsel was ineffective in failing to recognize that this is not a close case during jury selection prosecution used one hundred percent of its peremptory strikes against women twelve out of twelve point three strikes against women and that's just the start there's so there were so many more and disha of discrimination including the state's use of back strikes against four people for women that it originally not only not struck for cause but also not struck initial print three strikes court and and by d a federal did district the federal district court in louisiana as as being an indication of discrimination because it allows the the person exercising the challenge to disguise their motives for striking and in when you're not in the moment striking some and you may for the other party will forget why the why that person might have been stricken  addition to the prosecutor the prosecutor had had indicated any concerns about the answers of the females that he struck and then there was also an admission  later in the at the very towards the end of jury selection where the prosecutor said that he was going to use primary strengths and so he was just going to keep using peremptory strikes each time the jury was fully composed  and then finally of course if comparative juror analysis just on the record being able to looking at the females who were struck and there not being any apparent reason to strike them and in fact some of them being  quite compared to males who were accepted and actually served on the jury ultimately there was an unmistakable pattern in the prosecution's use of its stripes that should have raised huge red flags fertile counsel should have sounded he should have sounded the alarm bell at at the prosecution's use of his stripes if he had known it or any objective really reasonable attorney who knew the law who knew j b versus alabama which prohibits discrimination of against women in jury selection that he would have done something but he didn't there was clearly a kind of fish a case of discrimination here and the u s supreme court has recognized such with far le evidence strickland versus washington of course affords a great deal of discretion to the trial they strident strategy decisions of trial counsel but this was not a strategic judgment call this was just an omission no reasonable jurors a jurist to conclude that counsel performed strategically in failing to object to jury discrimination to this the use of this of the prosecution the strikes during jury selection defense counsel knew that this that the prosecutor had to use twelve strikes against women four of those strikes were back strikes the prosecutor had asked no questions about the issues of concern had not exercised any cause challenges against those women and also the jury composition the final jury was composed of eleven females and two males with alternate says three male alternate and one female alternate there were four alternates so in total that would be that would be  me eleven in five eleven made eleven females five males when you include the alternate but ten into their regular jury to use and the only thing the trial counsel knew and what really highlights why this could not have been a strategic decision is that the jurors who were struck were either favorable to their prosecution meaning that the state that the defense should have cause are hardship but according to the numbers that i have it was thirty nine females to sixteen males a total of that the final painting was after they had been after they had been whittled down and then randomly allotted fifty five people i believe the district court had made a reference to that number but but that's not the number that i have that i've reached  so that there were a number there are a lot of men and a lot of women stricken for caius no doubt that the other the other reason the other thing that defense counsel knew that made it clear that it was not a city decision not to raise an objection is that there were jurors who were struck that the defense should have wanted to keep on the jury  and there was no reasonable strategic reason there was no suit result strategic reason to explain the failure to raise an objection at least to some of those people to some of those jurors who were desirable even if you would have a different view in terms of you know which females key which you and often cetera et cetera but with the numbers going to the numbers themselves allow you to  looking at the numbers themselves allow us to get past the jurisprudence in terms of what is and what isn't a strategic decision you know bad the lawyers alone there were two lawyers squares with what's in front and i was simply asking given that hurdle i mean there are some cases where maybe it's more extreme or whatever maybe it's more easily discernable in the sand on the ground situation here with the our what it is  the defense defense counsel presumably was not trying to reach any particular gender composition of the jury in fact he's precluded by us from her precedent equal protection doing so so the numbers were where they are the numbers by happenstance by cause challenges were what they were but what wasn't happenstance was the intentional discrimination by the state and when this defense saw that and not only saw that there was a clear case of it that could have been objected to but that he had a reason to watch some of those e mails some of those particular females to be on the jury because they were because they had characteristics about them that were favorable he needed he all he needed to do  object because it would have been granted not only because a crime fiction case was there but also because once the state imposed conviction gave its gender neutral reasons those reasons didn't hold up so that had the defense objected then they could have there were a lot of different remedies that could have been given but they could have had jurors they like to receive it that is certainly i'm a smart t v decision and to get jurors they like receded they could have gotten the the printer is that were abused by the prosecution taken away under louisiana law they could have caused them to have to  lose them they could have gotten the entire panel the entire veneer there are all sorts of different remedies but all of them could have been could have all of those would have been should teach it but doing nothing wasn't because doing nothing meant that they lost chairs that they that were more favorable and that there was a structural error in in bedded in the proceedings because gender discrimination is a structural air certainly on the second the second issue like address is the issue of the sufficiency of the evidence even if this court grants ms a bear or a new trial on the basis of the discrimination against women in jury selection this court still must assess whether or not there is sufficient evidence to retry ms a bear for first degree murder i submit that there's not this court in the hay vs case of pres versus cain articulated the jackson standard in the context the jackson of you for ginia standard in the context of an insanity defense as whether viewing the evidence in the light most favorable to the state any rational trier fact could have found beyond a reasonable doubt that the defendant failed to prove by a preponderance of the evidence that she was insane at the time of the crime the states court the state court's decision that a first appellate court affirming ms avers conviction involved in unreasonable application of that standard and rebut terminations the facts at the trial in this case the defense presented the testimony of three mental health experts who assessed ms aber sanity at the time that she killed her two children her dog and tried to kill herself these three experts considered a wide range of evidence including the extensive clinical her personal and family history of mental illness the circumstances of the offense and the crime scene interviews with family and friends and the contemporaneous report of psychiatry as dr alexandra phillip and if i could by doing is to try to build upon something that the district court below focused on as an important part of their ruling on the first plane which is the alleged discrimination jury selection and a follow up it's a questions  counsel in the case below in the trial court would not have wanted to object to an alleged batson j t v type of discrimination and he went through that in great detail and most of it comes from not just the arguments that appellate made in her pay vs petition but going through the transcripts of what here and they indicated there's a reason they didn't want to bring these jurors that we struck back in because it in worse on the issue of the death penalty to the defense now there's also argument that somehow the defense kind of missed the d j e b objection and in this case we had three defense attorneys excellent defense attorney two of which were obviously certified in capital litigation the state of louisiana one of whom already stroud was a former death penalty prosecutor i would think he would have noticed prosecutorial discrimination h similar circumstances they also had the benefit of a professional jury consulting firm ok and the reason i'm bringing this up is that this wasn't a case where in a have overwhelmed or an experience counsel who kind of just missed an issue the defense got the exact jury they want and how do we know this they didn't use all their primp originality as they left three on the tape ok and you have to conclude from that that once they got to that point where twelve jurors will see they happen they want and the reason i'm going in this direction is with the defense wants us to do now is not really look at this as a  where we have to talk about the fishing performance what they've alleged is that should be like a purse a type of prejudice in other words a structural error analysis instead of a script one of those and here's the problem with that if we go back to when we had the twelve jurors were satisfied with the composition the defense is satisfied with the composition could the trial judge of said you know what mr defense counsel i know you like the jury you have but i see structural and structural error being an error that prophage the trial from its beginning to its in as the supreme court of said i'm going to exercise my role as a judge and i'm going to start tinkering with the jury spent two weeks picking and i'm going to i'm going to make concluded that there was a strategic reason to not exercise that objection therefore we did not have to fish in performance therefore it was not necessary to even get to the prejudice claim now having argued that we are not stipulating that there was any discriminatory intent in jury selection and in this matter fail to mention her math being different from the district court's math i think what she's quoting is the full four panel survivors i should say that we were left with after we'd gone through the death penalty and pretrial publicity phase of one here when we came back you know as thirty nine according to her math thirty nine to sixteen the math that matters is what were the numbers as they were it was a clincher and we pointed this out in our responses both at the state court level and in district  disproportionately the draw was seen male having as the court below noted up to the relevant time for jury selection in twenty three females in ten males and so are already against females nor indicative of a discriminatory pattern and again i would point out as we've done throughout when the allegation is made counsel just stood up and said twelve out of twelve it was not twelve it was  we had one left after jury after the twelve were seated we still have point three and that's important and we pointed this out and the district court noted this in ruling in the state's favor had we been motivated by discriminatory intent you would have expected this is how i believe the court phrased it one would have expected the prosecution to use that twelve peremptory to take another female off the jury because  and unless you have any questions of who had moved on to the second line proponents of the evidence that she was insane at the time of the crime and i think the district court below did a great job of articulating they went back  they went back and cited in detail the findings of the louisiana first circuit court of appeal which reviewed this during the appeal of right and as we as the state courts looked at the issue in a statistic quote below looked at the issue they were precluded from we really weighing the evidence or trying to really evaluate the credibility of competing witnesses the standard is only  in the light most favorable to the state sufficient in this case to reject the defendant's claim of insanity and we submit that it was and the pinion below goes into great detail to point out how the state's experts evaluated these the two letters the defendant wrote to her mother in law and her ex husband at the time she committed these murders and you know this first let's not say let's count the number of experts  mental health experts to understand what the issues were with regard to her mental state at that time i believe it was duct aside however or it was duct cell saito like that who said this case presented a very unique in this makes it a factual situation a very unique piece of evidence which was the letters that she wrote that's the only direct evidence of her mental intent or mental state at the time of these killings in the letters don't mention god or the devil they don't mention voices what they mention is chad you want your own life you got but i'll be they testified there was no hint of psychosis so i believe when the district court below re examined what state courts had done and was their conclusion on the jackson issue was it consistent with the united states constitution prevailing supreme court opinions it's certainly less so i would submit that on both issues the defendant the appellant has failed to meet her burden address a couple of the of the points it was just one use made first of all he referred to the district court's statement there was a strategic reason not to object and again i point out that the strategic reason given out given by the district court refer referenced only one or two dirs not all of them there was not should teach a reason not to object to discrimination against jurors that the defense wanted also that the state refers to the fact that the trial counsel was certified and in highly experienced in capital cases and i and i i hasten to point out that one of these attorneys the lead counsel this case has been decertified as in fact  for not handling cases properly and also that his suggestion that the degree that the jury was exactly the way the defense wanted it and that they were brilliant in not making any more challenges i would point out as a capitol  for seventeen years that is ineffective to not use all of your prim trees in a capital case because it means that you waive any objections to the death baltic ation of certain jurors so so if those are and if that's the standard for ineffective assist behaved they failed on both measures also we've never made it we've never said that we've only got to rely on presumed prejudice and the reason that we don't have have been proven to be untrue by the record on top of that though i would point out that the united states supreme court in reverse as massachusetts only this past year said that ineffective assistance of counsel for failure to raise a structural error like we aren't relying on that i would say that the us supreme court and only the last year has said that may just be one of those cases in reverse massachusetts also as far as the numbers go up again the fact that there were  bly going to be a lot of females on the jury is only one consideration that this court has to take into account it's also not relevant to the fact that the the use the strikes that were used by the prosecution against females was not happenstance that was not inevitable that was intentional discrimination i am not aware of any case where the state has used twelve or in three strikes whether it's eleven in regular and one in alternate or all twelve i am not aware of the case that was so in your face and as a defense lawyer that would heat you in the face also with respect to i'm sorry i didn't get you right that i did not get the two letters which i would have been happy to address in all of the evidence that the experts for this this is with respect to second issue excuse me on insanity the letters were considered by the state a by the defense's experts along with the with so many other pieces of it the letters were the only thing that the state's experts considered and that's why they did not overcome the defenses preponderance of the evidence standard the the evidence  in favor of insanity also there was also other contemporaneous evidence at the crime scene and then also at the hospital after ms aber was taken from the home taken from her home where the treating psychiatry at the hospital would witnessed her in that room having an auditory and loosened auditory and visual hallucinations of a demon in the room with her she had to be medicated with three should be or sure ain't in medicated with three any psychotics those sorts of pieces of evidence that contemporaneous evidence is evidence of this court in prison or she is kaine found very persuasive  the letters the letters are actually consistent as experts for the defense found the letters were actually consistent with her delusion that he was going to take away her kids the state itself in opening statements that there was never any evidence he was going to take those kids never and that the boy or the divorce lawyer who was in the other case no evidence that the kids were going to be taken that was part of her delusion she believes she heard the voice of what she thought was god saying you need to kill your kids by stabbing them in their brains because your husband your ex husband is going to come in get them do it now do it quick four o'clock in the morning she stabs her children in the school thirty times that's not s we appreciate the quality of representation on both sides are said difficult case we will review everything and will decide this concludes the docket