pull the mike in from the judge me the initial as you we've asked the court to discuss whether trial counsel was deficient in the penalty trial that leavelle fryers and received deficient in not performing the reasonable thorough investigations to into mitigation evidence that was readily available as required by the standard set forth by the supreme court in wigan's williams rumpy the a b a standards that one juror might have reached a different decision as to the penalty which is the standard that we can sets out and under the one nine hundred seventy seven law which this petitioner was tried on here that would require a life sentence the remedy we are requesting with regard to this claim is a new penalty trial the result of that would leave intact a first degree murder conviction a finding of the truth of the special circumstances which automatically results in la belle france and repeat receiving a sentence of life without the possibility of parole you're no longer challenging the special circumstances face no we are challenging them your honor but with regard to this claim itself that would be the remedy he would receive a new penalty trial we are challenging the sufficiency of the preparation and presentation of mental health evidence with regard to special circumstances but in dealing with the penalty trial which i think is most egregious that would be the remedy that we would seek the readily available evidence death trial counsel could have obtained if you had performed the type of investigation that the supreme court requires him to perform as well as this court requires him to perform would be compelling evidence of violence inflicted on that of the petitioner during his childhood a history of organic brain damage eight chronic use of drugs which he sought as an escape from that child abuse  family history that made this type of treatment of him almost inevitable because of his mother's background and as such we feel that there would have been a different result that had been this let's just take it and you look if you look at all the evidence that was presented at the trial as well that's correct so  this that the this court has decided in hendricks there at no matter how horrific the underlying case is and no matter how strong the aggravating evidence mitigation evidence should have been presented in a coherent fashion and that is that if the child abuse had been discovered which could have been discovered readily as as your honor asked by one telephone call to any of the civil this trial counsel did not question a single one of the brothers or sisters that lived with this petitioner during his lifetime did not question a single cousin that live next door and was with him that entire time so they present the child abuse evidence they present the mother's background where she grew up on the exact same cotton plantation that her grandmother was a slave on and as a consequence of economics of that situation the family could only choose one child that would not work in the fields one child could go to school they did not choose his mother she resented that that loss of opportunity so present when confronted with a child who unknowingly had organic brain damage in a learning disability she punished him severely for his inability to perform in school which explains why might just finish the answer to judge paez and then i will address that your honor and that is to address the green homicide this court has found in boys versus brown that the proper analysis is to look at the admissible evidence in aggravation whether they have it as was kept out or or the evidence was allowed the and improperly this evidence with regard to the green homicide tragically was not presented that there is a reasonable probability that the petitioner lavelle fryers and was factually innocent of the green homicide and the reason i say that is this that the police reports this with a juvenile of time when he was fourteen years old the police reports indicate that four different individuals at the time of the shooting identified an individual named quite as the person with the gun and i w mccain who also testified in the penalty trial this case identified white as the shooter white confessed that after he was acquitted in the juvenile proceedings and later interviewed by an investigator for lavelle fryers and he confessed that he was being maybe he did maybe he didn't he says he didn't well he says he didn't mean trial counsel sat idly by knowing he'd been acquitted and suggested to the court that essence take away the fact that he said that at the time he was told he might be prosecuted by this which is not legally probable and the district court found was an ear not to allow that evidence in california but it came in and california supreme court said it was properly admitted well because that that the in essence and the facts of the case would have come in but the fact that opinion as a judgment should not have been admitted  california law and if if we have that there's a serious question of whether one juror might have some doubt as to his guilt of that prior homicide if there is doubt is that prior homicide we are left with a robbery that went bad as tragic as it was and to robberies during the same period of time which no one was injured now with regard to the fact that these witnesses according to the district court would be biased in favor of was not as biased that there were other circumstances the party reporting of this and other things made him question whether this was believable at all plus that it was contradicted by or at least not corroborated by either of them that if that is correct but this court the district court made no credibility finding with regard to these witnesses whether they like or not because they never testified in front of the district court this court did not permit testimony they allowed testimony only by declaration earth this court has found that the court is not required to give great deference to any finding such as that when it's based soley on declarations there was no cross examination with regard to these witnesses on the facts dr malone it needed that this child abuse occurred and the way it would be presented to a jury to overcome the very normal bias because child abuse is going to occur in a home where the family members are these are secret thing not done out in the public square you do it by presenting a number of witnesses that have consistent stories of this abuse you have entertained declarations that your honour's could see the talk about it and the facts that are telling that are consistent and that is the sounds of bell coming through the air the bobby fryer soon heard smacking down on the naked body of his brother who was tied to his feet at the age of nine years old the welts and cuts on into all the school children who played with him if they touched him on the back saw him wince away when this happened the neighbors who saw him hide in abandoned buildings and would bring him food when he would be out for weeks at a time to escape his mother came in and testified to mr herring who had not seen the veil for twenty seven years had no contact with his family for twenty seven years wasn't a friend of his when they were growing up together because he was much older he testified that he was aware of these beatings he could hear in the next house over he could see labelle jump over fences to escape his mother as she tried to hit him with belts and extension cords and his first memory of it was when lavelle fryers him was four years old they were playing in the front yard for some reason his mother burst out of the house with an extension cord started beating lavelle in front of all the other children for no need for no explanation whatsoever that this occurred so this is not evidence that i feel a jury would have any question that it existed the question is as your honor puts whether there would be any prejudice from this and it clearly i think would be if the standard is to convince one juror because this court has given itself guidance with regard to whether the standard with regard to prejudice is one that affects this court individually as individuals or trying to figure out how one juror might might feel about it because i have tried personally pin definitely cases and the way i view this evidence might be different than another czerny your honour's have seen several death penalty cases and reviewed the records that effects the way you would be impacted by this evidence all the court i believe winds really has taken out that personal evaluation of the impact of this evidence and if i might read to the court what the court's holding was ian smith versus stewart where it said in assessing prejudice in a case like this when we are presented with a particularly difficult practical and jurisprudential question because we are not asked to imagine what the effect of certain testimony would have been upon us personally we are asked to imagine what the effect might have been on the sentencing judge who was following the law specially one who heard the testimony at trial the giving evidence might well have one effect on on the sentencing judge without having the effect on a different judicial officer and this holding of course would apply to jurors because this was a court trial as it would to a judicial officer so would this mitigating evidence which is conceded by the state occurred presented in the form of wide testimony before a jury with the facts they're telling facts of the sounds the smell when he lost control of his bladder and crawl back into his room with his brothers he is then attempt to anesthetize himself with drugs because drugs alone presented as a history of abuse is far less compelling is mitigation evidence even admitted by trial counsel unless there's a reason for it because jurors want to know why an individual who was sitting before them and was there to make a decision of life and death on how that person get there and hug he commit these crimes it's a natural question what they were presented with was in essence a false picture of who lavelle fire some was they were presented with a picture that he had quote a normal life with caring parents and nobody else in the family had a problem that's not true he was subjected to this type of violence from the time he was four years old to the point where he was beaten while he was naked all over his body including his genitals at the age of nine while his feet were and hands were tied together now that's evidence within explain to a jury according to the state's expert dr maloney that a very common method for children to deal with that type of violent environment is to seek to escape into drugs which the evidence is one contradicts that he did in an incredibly young age or ten years old which once again is a sign of why he's doing it his running away from home could be explained to the jury because of that because even at that time he complained in probation reports of excessive punishment mother you should report i think you're referring to so that he left home on these occasions because he did not like his mother's punishment that the documentary from that's one of them yes he says he states that when he was asked to go to a friend's house when he's being restricted for running away and his mother will not allow him to do so and he leaves and does not return the minor says his siblings have the same restrictions placed on them and he does not like being punished he talked about he doesn't like being grounded is that what you're referring to i'm not referring to ground it what i'm abuse that is cited in there talks about not only that he ran away also has the ran away at the age of twelve in one of the reports five or six times it's three month period that is what a probation officer put in the report i knew you brought up the reports i'm trying to find out where the terrible punishment is listed here it's terrible punishment it's not listed there because he wasn't asked about it by the probation a part of probation report really doesn't that something was going on at home when you have a mother who tells trial counsel you had a normal life and you have a history of chronic running away with complaints about punishment which the probation department didn't follow up on and of chronic running away yes when it is in the probation report that when the probation officer says to him he's going to recommend you go to camp or whatever and the boy sits there normally according to the probation report that clear sign that something is going on particularly when you run away chronically and still go to school why would you go to school if you just wanted to be rebellious and and be drawn life you go to school because you're escaping something and you're escaping what's happening to him at home and there was no problem in proving what was happening to him at home it would take one telephone call the constant promise of in a picture that would have resulted in in hopefully a different verdict by one of the the jurors and i think it would of and i think a reasonable reading a record is that there's a reasonable probability and i don't know how the court can have confidence in a verdict of death when none of this mitigation evidence that was readily available was presented to the jury none all it would have taken is one telephone call significance of his background is in a penalty trial this is not because we deal with it on every day basis perhaps something that we acknowledge should have been brought forth every citizen doesn't know that they don't know they're supposed to bring out the family secret because in some way this is supposed to help and they're supposed to do the job of the lawyer who never conducted an actual interview of the mother six months after he was appointed he went to court introduced himself to her and listened to what she had to say and what she had to say was he had a normal childhood what does that mean the state's expert dr malone explained that many people in this situation do not specifically talk about the abuse in the child in the home for several was never asked by his own lawyer about child abuse and these are themes that are longstanding and understood by the defense community and without a probing interview required by smith versus stewart you don't know whether normal to her includes beating the heck out of her kid every day he was examined by doctors gillikin siegel and do i understand correctly they never identified any child abuse they never inquired into it and they were not they were not hired for that purpose well villa get a full blown psychiatric evaluation in the eyes of the mill state at the time of the crime never asked a question about child abuse siege hot was retained by previous counsel as a psychopharmacologist this trial lawyer when he allegedly read the transcript would have seen that this psychopharmacologist would come in and that can i provide that short in reply all right so with out a presentation about organic brain injury you're talking about abuse of use he said that he had a profile consistent with that with abuse in the home yes and was never even though he had spoken to the guilt investigator there was no penalty investigator employed by this truck council even though he spoke to the guilt special circumstances penalty phase was not under it an obligation based upon what what was before him to do an independent investigation into child abuse and this was the precise issue that judges  presented to them and based upon the entirety of the evidence they came to their conclusion that counsel was not would not have been prompted to do an independent of use investigation and there was several reasons for that one of them  particular petitioner and his parents never mentioned it to him or his investigators but more importantly petitioner's mother had already testified and remember we're up we're talking about a second retrial when counsel came that's the counsel we're talking about impression that he came from a good background so the fact that the council now was present was facing this is when counsel came into the case that he had already before him the sworn testimony of his mother mention or reference to abuse and references to good childhood in addition this is fires and this was down significant by judges in prager's and told the penalty phase investigator casey cohen an experienced death penalty well known person interviewed by casey cohen in his preparation for the penalty phase trial divulged such information and investigator cohen was the penalty phase investigator for fires to the current record that  looking at the entirety of the case presented the mitigating case presented by he is counsel came to the conclusion that the mitigating evidence this is the quote from judge prediction that the mitigating evidence the counsel fail to introduce at the penalty phase is likewise neither compelling nor exculpatory and in referring to the penalty phase case the council did investigate and present before the jury particularly regarding the chief aggravating factor which was the prior juvenile homicide judge preggers and three zero to four of the experts in the excerpt me conclude it is somewhat remarkable that trial counsel was able to surround the green juvenile homicide in a shroud of mystery and i think if the court were to examine the record on that what with the court would find is what counsel did present during that was that the counsel presented the evidence testimony of philip mccain who witnessed the shooting testified that the gang related fight had broken out where greene was killed the petitioner was not involved and he identified white as the killer this is counsel's case in the penalty phase further testified that white called him and confessed to the shooting that was evidence before the jury the penalty phase presented by trial counsel arnold lehman he also presented the temp testimony of mr conception was also present at that party and testified that he didn't see petitioner at the do the shooting but the white was present and had a gun with him that night in addition conception further testified he didn't actually see who didn't see the shot green and then white whom mccain had identified as the killer asserted spent amendment privilege in front of the jury and white denied claim as to why we believed that it was not unreasonable for mr lehman to believe that mr white still had remaining a fifth amendment privilege that was rejected by judge wardlaw on those grounds but judge wardlaw nevertheless examined point and that was from petitioner himself and the california supreme court directing him to present evidence of mental health evidence at the special circumstance face and i think  was not called as a witness but he was retained and in fact the records dictate to show that he was actually retained for five years and three and he spoke to him on three separate occasions and this was the subject of the partially the subject of the reopened evidence you're hearing by preggers and as to what occurred between them and once again it's important to point out that dr siegel was not counsel's indication of the case that should have been presented in three the counsel indicates presumed that dr siegel would have been an important witness at the evidence you're hearing in but in fact he wasn't he wasn't called or listed by either party because the point was not that counsel was ineffective for not calling dr siegel the point was coun shopping after concluding reasonably the dr siegel would not have made a good witness for the proceedings at which he was called and that the important point here is this because we were at a retrial where counsel as was required by the california supreme court and his and petitioners clearly expressed desire to put on evidence of mental health at the special circumstance phase rather than at the penalty phase where did the presented in the first free trial that counsel then had to put on a witness who could attack the mental state necessary to commit the special circumstances and the problem with dr siegel is the best he could do well from his testimony was with state that he petitioner could form the intent to rob he could not form the intent to murder and the court found and mr lehman found that that wasn't going to help that the special circumstance space what he needed and what he got through dr wasn't an expert an expert a child forensic psychologist psychiatrist with a board certified in fact who would interview petitioner and came to the conclusion that he could not form the intent to rob or murder that he could his mental state wasn't why petitioner could form one intent to rob but not form the intent to murder and still that's an important distinction to be made between and the position of mr leman influence at the when he steps into the case of priors and three think there was a finding it nor has there been that he didn't know that he never read the record whether he whether his recall for me to record was incorrect and just far as a written report that's conceded he did not know from his testimony at the evidence you're hearing that there was but the point as to whether drug history had been performed the answer is yes and in fact that the petitioner's drug history was presented through dr gillick and through the percipient witnesses who testified at trial concerning his drug drug history so and then the important point then once again is going to the issues that were specifically addressed by judge just marino on preggers in this what what what use would the drug evidence of made what could we make of that at the pen with a special circumstance or penalty he based his complete conclusions on a hypothetical created by council and was asked to assume facts were true he was asked unquestioningly rely on zonder woolley despite her and without knowledge of her prior convictions including for forgery and false of the case of putting false statements he did not review any medical reports any transcripts any witness declarations any police reports so their best testimony from dr wilkins presented without presenting him with all this background material and at the same time they're saying that counsel was ineffective or not the information to their experts nevertheless when dr wilkins was cross examined he couldn't you know he  couldn't testify as to how much p c p was consumed or was in position or system he couldn't determine how potent it was he testified that he agreed that his opinions as to whether petitioner suffered from p c p intoxication depended upon the accuracy and reliability of zonder woolley and yet he hadn't taken her prior convictions into account so we have to he would have to question her reliability he didn't do to particular he didn't take into account the fact that zander woolley was convicted of being  an accessory in this case he was not aware of petitioners own testimony as to what he had consumed and at the end the fact that this amount that petitioner had already testified to nevertheless form the requisite intent that he believed petitioner could form intent to rob that he testified there was no hard science to support the hypothesis that p c p could impair an individual's judgment while leaving lower level certain level of mental acuity and his test of and the stomach and substance of dr wilkins testimony concerning petitioner's mental state in line with the drug use was that this belief was that the shooting of  because there was no need for him to shoot that he could form intent to rob but he couldn't show the fact he couldn't form the intent to murder because there was no reason for him to commit those crimes well of course one reason that was presented to dr wilkins on cross examination at his deposition was elimination of witnesses and in fact all the indication words they were driving and he was making the victim's drive to a a less visible location directing them so that they wouldn't be seen and in fact the fact that the victim's kept looking back at them worse indicated that they had in fact got a good visible look at him one reason then would be elimination of a witness and specifically judge maria no addressing their counsel's best case as to what a psychopharmacologist was present test a judge may know found that this is at two seven six seven two seven six eight of the excerpts of who could only testify that petitioners behavior at the time he committed the crimes was consistent with p c p intoxication but not that he was actually intoxicated and the expert would similarly have had to concede that despite any alleged intoxication petitioner could form the intenser rob so once again it would have been presenting an expert that would have actually contradicted the expert he had presented on mental state doctor going to testify couldn't form the intent to rob or murder he would have had their argument is now that he should have presented an expert instead who wouldn't have had a strong opinion and in fact dr wilkins indorsed scientific principles that would have seriously undermined petitioners proposed defense and that's that as set forth by the judge marino and his order so i think and specifically regarding the testimony of the cycle pharm at the reopened evidentiary hearing and both judges prager's and marina looked at the entirety of that case particularly dr wilkins in this regard and found that it wouldn't assisted the defense in any meaningful way and in fact would have contradicted the reasonable looked at the specific the claims of of counsel to ninety nine claims amended petition the court the court looked at the claims that where they had the where the court found that counsel and what had not acted as if you something differently and rejected under the cumulative error claim which of course is not before the court is not certified but look at those places and i think this is an issue before us even though i'm certified if we decided to be certified the well that the uncertified claims pursuant to i think rule twenty one half were not could have been the subject of additional briefing by the parties but i think i don't think that additional briefing is necessary but where the court would require it is required before the  to a large extent this case and the court is dictated by the standard of review and i think it's important as the court has recognized the to recognize the height of the hurdle petitioner m when attempting to convince this court the facts found by the district court were clearly erroneous and i guess you should ask the child of these for a second i discussed this with mr record doing as you correctly the judge marino in effect found that the child abuse evidence was plea today and not very probative maybe not even very credible it ends with the court look at it in two ways it looked at it but he didn't have a hearing  testify and had so testified pursuits of their declarations and it's been unimpeached as it was as for the witnesses we didn't cross examine till their testimony came in and cross examined that that wouldn't have made a difference and the court so the court specifically looked at and addressed that it did and one of the reasons it wouldn't make a difference was there that they were they had an inherent bias they could've been cross examined with a bias but the court's findings that were not based are not but it doesn't the court but by the court did make a finding necessarily that these witnesses themselves were incredible or that did a finding of lack they lacked credibility what the court found was that their testimony could have been impeached which means that what it wouldn't have changed the result is that that's correct and they would have been impeached with a lot of things i've already referred to the fact that petitioners mother testified under oath that didn't occur but just bother testified it didn't occur the petitioner never to this date ever stated that he was abused as never put forward a declaration or testified that he was abused that every all contemporaneous records are absent silent concerning i think it's important to note just in passing that this case in the district court level went through four different judges none of whom ever took a look at the entirety of the case now with regard to the question of notice if this court requires trial counsel to be put on notice of a fact that requires him to the in start an investigation into an issue such as child abuse or brain damage  will be walking away from the supreme court decisions and the long line of authority this court has established and that is this and it's the most important premise of our case and that is the decide which areas he'll pursue which he will abandon we all have limited resources that's understood every case is different on the facts but you start with the first eight just a fundamental investigation of the facts was hired just for the special circumstances solely for special circumstances the guilt of the special circumstances that was quite clear his investigator asked no questions of any family two six to six the extractive records while i never saw or reviewed casey cohen's file on the friers and case which was attached i never spoke with casey born regarding the not what appears in his report but what would have been told to trial counsel if he had picked up the telephone and called dr nuremberg or that his investigator said was willing to talk to him and at that time or according to his declaration at extra record to six five six would have said i was very familiar with the psychiatric profile mr fryers and presented it is not unusual to see this pattern in persons who suffer from physical abuse at the hands of one or more caretakers and or who suffered from structural brain damage and council never interviewed any family members with regard to this abuse that's why they didn't come forward that's why we have this scam with regard to reading the transcript i think the evidence is even more compelling that this trial counsel never read a report and would not have stood in front of the jury and explained that he wasn't aware that his only expert had prepared a report of cases he didn't know there was a report how would that have advanced the ball the ball would have been advanced because the a direct examination of dr gillick would have been more comprehensive dr gimmicks testimony which is extremely brief on direct did not include any of those credentials his opinions were conclusionary and not backed up by any facts or that siegel's report he read from it six times in the transcript and this trial counsel says he wasn't aware that siegel had prepared a report and he and he i don't like what i testified had he been called that he could form the intent to testified to previously concluding that on the night of the crime well fire soon was quote severely intoxicated that evidence came in any way through his on her willie and others didn't know it came in but without the scientific basis of what chronic use constituted in terms of his history the jury heard his history of abusing p c p no no the jury did not hear his history the jury heard from zonder woolley and other witnesses that on prior occasions had seen him under the influence but nothing on the history that an expert could classify him as a chronic user which is the status that has particular relevance with regard to the muting of motor skill that was used by bonus to by the prosecution the showing wasn't under the influence and at the same time those motor skills are muted the ability to exercise judgment and the mental state is impaired and he would not have been most importantly if he had read the transcript trial counsel would not have been confused according to the district court's finding as to what siegel was saying and could have called a cycle pharmacologist that trial counsel under oath said would have been the best type of witness for him to put on he directed after his conversation with dr siegel he directed his investigator to find me another doctor not a police officer and it was the investigator who selected this witness in the store trout who is a police officer not a cycle pharmacologist and try and counsel never spoke to this witness expert prior to the very day he showed up in court to testify and was put on the stand so not it's not a reasoned decision a tactical decision that he wants this type of witness as reporters transcript page eight nine six of price and two that petitioner could form the intent to rob but then it's not the critical mental state issue the and the mental state required for special circumstances is premeditation and deliberation which is a much higher standard than the mere mental state required for an intent to rob and i just would in just just to conclude that in the district courts conclusion with regard to the importance and persuade ability of the evidence with regard to drug history and the evidence with regard to dr wilkerson who we had to pay out of our own pockets to testify that's why he gave a hypothetical response was that he used the wrong legal standard the district court felt there had to be a nexus between the litigation evidence that was presented in a defense to an element of the special circumstances that it's not the law to nard drek e a smith versus texas