it please the court my name is jeffrey ellis i'm here today with rubber gum byner and we represent clark elmore in this case because trial counsel failed to object occurred today would be structural where putting aside counsels expression through what do we do with the washington supreme court's conclusion that under pretty dak law this was not prejudicial do we find that to be an unreasonable conclusion a fact or a reasonable application of the law under your view well there really are two conclusions one from the direct appeal one from post conviction perceiving the direct appeal is the due process claim right where they say that despite the fact that they found it was constitutional error they said the burden of proving harm fell on on mr elmore at that so there's that when wasn't that the pretty deck law then that no one's having demonstrated there you still have demonstrate prejudice for me well no it wasn't was chapman was that where there was a washing supreme court understood i don't understand why they may they may have washington of course is free to have its own view of what the constitution requires but it seems to me that that it's pretty clear that before dec this was decision was a if i understand the record correctly and he's a decision made by defense counsel with his team to present him in a way that showed if you will excess humility sense of that was that was their strategy if i understand correctly the government said you know what i really want to hear like this you know that nobody was forcing him to appear in shackles there was a strategic decision to have him do that one day but and to appear in his prison uniform the balance of the time did i misunderstand something he do and so did the state court and i think you have to look at that in  chambers conference which precedes the first appearance in front of the veneer because the state court misreads it and they miss characterize it in their opinion because they said just as you did that mr elmore agreed to be shackled he did not what happens there's a conversation about wearing jail clothes and that conversation is defense counsel saying we've considered this matter we've spoken to mr aylmore about it and he has a green where jail what his lawyer says we'll leave him on today which i think the record shows doesn't that does not kill you due process claim no for two reasons that's not what he said he said i don't have any objection i think it is up to the jail  find that it was invited there in the state is not argued that it is invited there are several times watching supreme court found to due process violation not so sure they did because they make the point that the ball's in the defendant's court to object to say something and the inference i draw from their opinion he didn't and then they went on to discuss prejudice but i don't see any kind of articulated determination that no matter what happened there we've got a due process here well again i respectfully disagree th on the talk about sites and circuit case and talks about prejudice i don't read that the say that the washington supreme court concluded there was a due process while process violation and and the district court didn't read it that way if it's said something specifically to the reading from i've got the p second version from page three o five well he hears the quote that we rely on and i think it's i think it's fairly definitive in the present case and this is again from a direct appeal that there is no justification for mr aylmore to be shackled and we will start from the presumption and i think it's a fair presumption that counsel was ineffective in failing to have jack the washington supreme court in the post conviction review person opinion the second one i know you call personal restraint but i can't get my arms she says yeah but it was only one day and it was brief and it was off the rest of the time and we therefore find that you have a demonstrated strickland prejudice which is the burden of the defendant why how do we find that unreasonable it was a question i was asking before some other got into it tell me how well there really are two components to the state court analysis one is this idea that because mr elmore had claimed that he was remarks foal the site of shackles and i'll quote the supreme court here offset any implication of dangerousness that simply defies common sense and that really  to show that they were remorseful what do we then take of how long does the penalty phase trial last well how long does it last the the trial itself lasts about really about three days days of trial right let's let's talk about the what here because again i think the state court is mistaken when it analyzes that what happens in five years mr aylmore appears in shackles for the first appearance and then to jury is read this description of the cr almost like guilty here's what you just then they're asked to leave and fill out your questionnaire each individual their juror is then brought back so they only appear again and even though there's about a two week period they only appear again for one they saw him because when i see the washington court doing i might not have agreed with it i might have come out differently you say well it's a relatively brief you at the beginning of the case in any implication of dangerousness is dispelled by the fact that by the time they see him again ell me why the washington court was unreasonable in reading those facts to suggest that your client had demonstrated pretty because it's a face common sense to conclude that the jurors seeing this man it's a first impression would somehow conclude their first impression was wrong when nothing was done to dispel it it's important to reduce cases in terms of what actually happened so i appreciate your questions about the timing but let's talk about what happened i think that a curative instruction would have gone a long way especially given the timing element if if the court had said that was just a security measure we were in a different room you have to keep in mind that on the very exists which is that this man is dangerous that might have gone a long way securing the credit so i with respect to see a very able lawyer and one of the things that spring court tells us about review is that there will be very capable lawyers who basically revisit the past and look at everything that was done and poke holes in it and understandably that's your job i other hand we have to review what happened here and through the lens of ed highly highly deferential in this case the washington supreme court after having sent the case back to the any they were aware of the shaklee they were aware of all of that and they concluded that under the standard washington state that existed at that time that there was no problem this is the way you would have done it i'm sure not the way judge her was done i'm sure not but the reality is that's not what we're required to do here we're required to give doubles efron's if you will to the state court unless it violates one of the two existed at the time that this occurred and what i'm struggling with is you're saying here's the way we view the world to day and i want you to judge then by the world today and i don't think we can do that under  cite to me counsel any case where a lawyer that makes a strategic decision to put his client in chains remorse show re more so than make a strategic decision to do this now it probably wasn't very far decision but it was a strategic decision worst case law that existed at that time that says a that it was deficient to fail to of jefferson and i accept that i mean and that's why i think you get past that issue that walker finds that the use of restraints is not prejudicial in based on a state court determination and that's why i'm having first factor it sets out is what was the device and was it visible and they say and walker's case it was a lake race it was under his quote i just know i understand the facts are different when i'm sitting in walker's judge silberman walks through the state court determination and says based on the facts it's not unreasonable and my question is you've got to walk us through the state court determination here i think you've tried to tell us why it's unreasonable not why it's wrong i think it's wrong right but why it's why it's so unreasonable that no reasonable jurist good could come up with it's unreasonable for two basic reasons number one shackles don't imply remorse and it's and it defies common sense to think that all jurors would so conclude secondly the  of the nine washington supreme court justices disagree in terms of the the result on this suggests that reasonable people can find it appropriate you know you make it sound like if you if you if you think that's reasonable and you're an absolute idiot nobody could possibly group that way well are you saying that the eight eight of the nine washington's rank are justices are idiots i'm saying dangerousness was one of the two issues that the jury had to decide let me redirect you and i think this is well briefed to well argued but i want to regret your attention to a part of the case that troubles me and i want to see if i understand it correctly and i'm thinking now about when i'm going to call the brain damage issue yes as i understand the record what you tell me if i'm wrong on this defense counsel investigated and made a reasoned decision not to put on mental health more of your time necessary but that defense counsel never investigated the issue of brain damage and that you had in the state personal restraint proceedings you put on experts to say that that that fell below the standard and you put on evidence to show that that had he done so some expert at least would have said there was brain damage i'm having difficulty in this is the question i want to ask you figuring out whether the washington supreme court actually dealt with that issue the dissent surely did the washington supreme court deal with that issue because if it didn't deal with it maybe perhaps one level of abuse is is appropriate if you did in other  so can you tell me whether it did and if so where yeah i would argue that it did what what the supreme court did with respect to this component of i c and it's true with other components is to say that counsel was insufficient for failing to put on the evidence they had in hands  because let's start with the brain damage the washington supreme court decision does reference brain damage does not and it notes among other things that doctor probably butchering the  connect said that if there were clinically significant brain damage you would expect it to manifest in various ways and he didn't find it manifesting that wasn't the end of what he said or the end of what the washington supreme court said about it but i think we should be clear that the wash and supreme court opinion about all of this and unless we say that the eight members of the supreme court signed on the majority opinion didn't read the dissenting opinion they were of course aware of the brain damage issue whether or not well they were my point was aware of the neurotoxin issue because they do mention it and the dissent mentions it i'm asking you where they deal with it do you think that they deal with it in conjunction with the mental health issue because it's one thing to say that he made a strategic decision not to present evidence that he had right another thing to say that he made a strategic decision which i don't think the record supports not told even look for the brain damage evidence counsels counsels declarations were court does they take this and they put all of this under the umbrella of did the trial team investigate in any aspect mr elmore's mental health so we've created a very big on parole right did they do any mental health  or that they concluded unreasonably that this was a strategic decision as opposed to just an omission what do we do i think you review it you know because the state court hasn't spoken on the atlanta or do we asked do we actually mean harrington says that even if the court gives no reasons at all you have to presume the reasoning behind the decision well except the state court has given reasons and they've given a clear conclusion and they didn't in the face of a dissent that laid out an argument with regard to toxins and brain damage and they reached a different conclusion now do we assume that the supreme court made no decision on that or do we have to imply there they made the decision and we stick in the reason i think can you conclude wanted to think so i think you can clearly conclude that they mis framed and then misapplied after this case was over i looked at what was going on at that time and i'm interested to know what case law the washington supreme court violated or the state  when it did not require him to do further investigation about brain damage well i would say it's strictly but i would i would also say that it's wigan's because again wiggins is an advocate so we can't break any law and weakens was tried in the mid eight fact the answer was that not putting on the brain damage decision was a strategic decision and let's also assume that there was evidence in the state quickly seeking that this might form one of the first part of strickland reasonable standard care and there was some evidence that there might be prejudice there's no findings about that in the state court proceeding and so my question to you is we can't determine the novo can we at this point whether or not it fell below the standard of care because you know there's no evidence room on the other side from which we can look at that we can't determine de novo whether there was prejudice do we is there some mechanism by which we can get this back into the state courts for them to determine that or should we send it to the district court for him to determine that recognizing underpin holster you don't get to put in a more evidence i think you could find that the state court process was unreasonable for purposes don't you got in all the evidence you needed to get it and you just don't like the fact that they ignored it yes i agree with you there i think i was going to get to the other point i think you can ask what is the uncontested evidence about the standards of practice that existed at the time because there's only one piece of evidence about the standards of practice and that's the declaration of that's all ski which was never contradicted by the state but here's here's my concern announcer it's on prejudice again i want to get back to ok with all respect this is an awful crime the facts are terrible i don't know how i could conclude even if i were doing to know who review that had this great evidence been put in brain damage you have and it's been put in it is more it is likely that your client would have receded defense different sense i don't know how we make that determination no court has yet made it and so i'm struggling with the issue of answer to your question the the first thing is you don't look just at the brain damage evidence in isolation up let's assume that's right let's assume that i can clue that the washington supreme court was perfectly reasonable on everything else but this issue and this is the only issue i'm focusing on how do i find prejudice well i think if i'm prejudiced but by looking at all of the evidence that was presented in action along with the evidence that was presented during the penalty phase and then you have to look at the washington statute which is a peculiar statute because it says has the state proven beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency so essentially that there's zero medication  in that it as has the state proven the absence of any mitigation so it's not a way in statute absence of sufficient mitigation sufficient mitigation so we do what we do in these cases we say to twelve people you decide we're giving you all this evidence your decision is not reviewable nobody's going to overturn it you decide so what i'm struggling with and maybe there's no answer to it is how do we decide that in this awful case with terrible facts that introduction of this information about brain damage would have changed likely have changed the result and i'm i think maybe you can think about that and come back and talk about on rebuttal but that's my that's my problem with larry and i'll add a note to that if you think about i'm sure we'll hear from the state about this is well what's the impact of that and we do have the strategic decision with regard to mental health evidence that defense counsel thought it might actually undermine the case by suggesting that this person was danger in the future that whatever the mental problems were they left him as somebody who might do something we would regret in the future brain damage somewhat points to the same direction and so i want you to think about that and be able to speak to  is we think that might have made a difference all right thank you and we will give you time for a bottle and now we'll hear from the state pursuing a mental defense not further investigating mental defense this court's review is to believe deferential and the supreme court did resolve the issue of whether counsel should have conducted further investigation into the issue of organic brain report it's at page two fifty eight and under the pacific third report it's at page three forty seven and what the state court is addressing the issue and what they say is there is no question defense team to investigate petitioners mental health deficiencies rather the issue is whether council's failure to conduct further evaluations amounted to deficient representation you believe that it did not the defense team made a strategic decision to not present mental health consumer let's focus on that because if that's a finding of fact that the defense team made a strategic decision not to pursue further mental health stuff how do you reconcile that with the declaration of counsel that never thought about it which i wish i had i guess i missed it i guess it was my he said i guess it was my experience i never did well your honor i how can you make a strategic decision if you didn't even know to do to look for it and then my second question secrets of those at once is strategic decisions can fall below the strickland standard of care and they're not i can decide not to put on d n a evidence because i think it's not really cool can have an inept strategy right but it is highly deferential and it's doubly deferential under under as the return of the first part of my question how did how can we said said he made a strategic decision not to pursue evidence that he had no idea which would be helpful and just and you have no idea about whether to pursue that's what he says yes your honor and for further factual evidence there is findings of fact by the trial judge in the reference hearing this  exercise record volume one page eighty eight to ninety three where he sets forth counsel's reasonings why he decided not to to further pursue and present mental health and i think we all agree that's a reasonable decision my question is if as the experts say mental health and brain damage aren't the same it's death penalty one hundred one to look at brain damage this guy hadn't a clue about whether to look for it and therefore have trouble figuring out how he made a strategic decision not to look for counsel can i part of your answer to my colleague i would appreciate your reflections on holster because it's almost on all fours in pinhol stir you had two lawyers who spent a total of six point five hours in total in total preparing a penalty defense they decided strategically that they were going to put on the mother they were going to put on  some former colleagues and it turned out that he'd been run over by his mother when he was two or three by a car crash the front part of his head he went through the windshield when he was eight he started have an epileptic fits when he was twelve all kinds of act out things none of that evidence was ever put on the supreme court reviewing the case under ed concluded that defense was enough and the fact that they had discovered this was enough they refer to double deference whether we agree with the supreme court or not what bearing you think that investigation even if they didn't know about neurological evidence and didn't know about brain damage does not fall below the the level of a reasonably competent attorney the same thing as a matter of law as because there was no factual development of this no the only evidence in the record from experts about the standard of care is that this this falls far below the standard of care expected of capital defense counsel so we have to conclude as a matter of law that the decision not to pursue this no matter what the experts say can't can't possibly be can't possibly be deficient here your honor i think what you have to look at first is whether the state's court's decision was an unreasonable ops case of strictly and see what my question was slightly different than than what my colleagues answered and i think he's right about what he said is whether or not we can conclude that defense counsel made a strategic all washington supreme court decision in my view on this issue turned on on probably an implicit conclusion that because he because he figured mental health wasn't all that good he made an implicit decision not to look for other things that might  involve the head and so my question is is that a reasonable decision given testimony of trial counsel that i and a clue about this brain damage stuff your honor it is because what counsel said was the reason open the door to discovery and a lot of damaging evidence would be disclosed to the prosecutor so counsel said i've got a report from a doctor saying my client committed the crime not because mental illness but because perfectly reasonable in light of that we all agree even the guys the other table agree perfectly reasonable in light of that not to go forward he has no idea what the brain damage evidence would show how could he make a reasoned decision not to investigate it because strickland says you either have to do a reasonable investigation or favorable evidence from further investigation he was he explained that he was concerned that if he dug into that subject that will urge the state to dig into the subject what did he think the state would have found if they dug into that subject what evidence do we have as to what they would have found well under washington law the state would a lot have been allowed to have their experts evaluate mr elmore and mr elmore had made damaging statements to his own experts their counsel was afraid he would make those statements to the prosecutor's expert under washington law and he would get a copy of dr roche's report which had evidence counsel believed was damaging to mr i'll make some sort of brain damage defense he would get not he's over report that dealt only with mental health yes you're on it because you cannot you can't really limit the discovery on a on a particular issue the prosecutor would have and this was a very it's not like let's assume that it has damaging information just for the moment he doesn't know what the brain damage investigation will show a great average investigation may turn up to be the best defense in the history of the world with the worst offense in the history of the world  by not pursuing it remember he's not making defense he's only pursuing the plans he just has to investigate as he did with mental health why not why does investigating it open up his his prior reports to the state he can make a at that point in time the case was starting to fall apart mr elmore did not want mitigation evidence presented he did not want to see this dragged out he threatened to act out in the courtroom if they presented an extensive defense counsel said we were we were playing a game of beat the clock and we were running out of time and he had to get this case to trial and he testified and the evidence for hearing that the reason he didn't conduct he said he would have loved to have been able to spend all sorts of time can investigating organic brain damage but he was faced with the situation at the time of trial where his case was falling apart if you didn't get it to the jury he was afraid he would have nothing do you agree that his his testimony that i would have liked to pursue this was a post hoc rationalization it wasn't that at the time he thought about pursuing it brain damage he says he didn't even know about the defense and then and then made a reasoned decision not to pursue it when he was saying later as well given the way i ran this case even if i known about it i wouldn't pursue it and i disagree your honor was not post hoc he was saying this is what was occurring at the don't know i'm asking specifically about brain damage i understand that at the time he made a decision but stopped because i'm frantic i want to get this case in front of the jury quickly as possible i'm asking whether at the time he made a specific reason decision not to pursue brain damage or more importantly is it even necessary that he do so did he have a duty to inquire into brain damage he did not your honor under security first might i ask the question this is a good way to make a decision or not your honor i think that he made a decision maybe not specific to organic brain damage but he made its decision i'm not going to further various cases the court grew from those cases and quotes constitutional duty to investigate and the principle that is in the prime of ineffective assistance of counsel to abandon their investigation of the petitioners background after having acquired only rudimentary knowledge of its history from a narrow set of sources and they went on to tell and no uncertain terms that i was just flat out wrong  to presume council's decision was comp and it's not the burden of counsel to justify why they did not seek further investigation it's the petitioners burden to show that that decision was unreasonably deficient representation and more importantly under at that the state's court decision that it was not deficient was itself an unreasonable let me ask you a broader question and i say this recognizing that this trial occurred in the one nine hundred ninety recognizing that you weren't responsible for the state of washington as able counsel in front of us when i step back from this case what concerns me and i don't know what to do with it frankly is that we have a capital case in which a lawyer is appointed with something i've never seen in a capital case and then he puts on a brief a cursory mitigation about how sorry his client is that he did it it's awful representation honor i i respectfully disagree that it's not awful representation mr calmer this was his first death case but he was the most experienced defense attorney for the county public defender's office is the is the state court limited to getting it appointed counsel from the county no your honor and the state court has since this time established stand i've looked at your standards and they're quite good i mean this is i don't play i don't move them backwards to say that this is a problem but we do have capital offense is a specialized field we have somebody who's never done it doesn't conduct negotiations when the penalty phase trial comes in high comes in shackles and even the washington supreme court says that shouldn't have happened and then when you get to the penalty phase he he puts on a couple judges to say gee you know when he was in front of me he didn't seem all that he single morsel but in what how could you repulsively do anything but sentenced to death and the circumstances well your honor i for example did he associate experienced capital counsel two of them did he hire an experienced investigator that he hire some people who had also had capital experience did you hire jury who was the second chair they were both very experienced attorneys experienced in presenting criminal defense and and mental health defense he did consult with a trial consultation team t is pretty revolutionary for a criminal case he did refer mr aylmore to two psychologists they never told him you need to look at organic brain damage in this court has held might circuit case that that doesn't matter but the supreme court has never held that counsel can't reasonably deliberate rely on a website isn't there evidence in this record that one of the experience counsel that he associated or consulted said to you can look for brain damage in cases like this yes your honor but name and he didn't so he did not so it wasn't the absence of the doctors telling him that he had he had direct advice that this  something he should look for he did have advice from and then cerny but again the strickland standard looks at the fact that not all attorneys are going to agree on the best way to try a case and even an attorney who has not done a death case can be an experience and be a very good attorney and represent a client who is their expert evidence in this record in the state court proceedings that it conforms to the standard of care in capital cases not to investigate brain damage well your honor there is not the only expert attorney who testified in state court was the defense attorney when we would not believe him i mean that's a separate issue again asking what what's fair and there is no prosecution expert attorney who testified what we did have was the testimony of the the actual attorneys as to why they made decisions that what they did and strickland doesn't x doesn't say there is a strict standard that has to be applied with strickland weekends have said is that it's a standard of reasonable ness it's not the a b a guidelines it's not the courts rule of ethics and courts rule of responsibility for an attorney it's what is the reason why it's the professional norm as as  prong of this claim if counsel had and again there's a lot of focus on counsel's failure to investigate that wouldn't matter if counsel made a decision never to present this evidence in the first place what only if this evidence was presented at trial where the court  rebuttal case that had damaging evidence so given that and this is the point i was about difficulty with with you opposing counsel when they ask you let's assume against all your wishes we decide that we have to determine whether or not the the absence of this evidence was prejudicial to mr elmore how do we do that do we do it novo do we ask the trial court to look at it do we ask mr elmore to exhaust his to go back and exhaust that question in the washington courts procedurally how do we do that yes your honor so if the court got to that point where it was looking at the prejudice problem the court would be looking at it to no avail at that point because you would have to find that the state court's decision on reasonable on confidence was unreasonable i'm assuming we started by four so what you would have to look at is all the evidence you would have to look at the facts of the crime you would have to look at the evidence counsel actually did present you would have to look at the your honor there is evidence in the state court record dr levine testified that he disagreed with the opinions of dr watson and dr woods and he pointed out that their their opinion was only that mr elmore had a mild or mild moderate brain damage that he was acting under an emotional disturbance which is not a truly a psychological term and that he had some limited keep ability of conforming his behavior to law but there was also extensive evidence that he could conform to law that what he did and they would miss it that what he did was premeditated when he raped her when he choked her when he drove that nine inch nail into her head when he put a plastic bag over her head  that's why i asked the question do you think we in the first instance should look at this and say reviewing this record did novo even if we find incompetence we can't find prejudice you know you think we should ask the district court you agree the washington supreme court never dress the prejudices you're in that's my understanding of reading the opinion so do we ask the district court to address it or do we somehow ask the state courts to address it as perhaps by suspending proceedings while further for the review sought in the state no your honor you would you would be the this court would be the court that decides the prejudiced issue but only if it finds in the first and yeah i know you're not conceding and review he cannot make that showing because if you look at all the evidence the jury still would have sentenced him to death and we how do we do that and that's my it's part of my difficulty with jury decisions because really if  the other side had gotten only one juror then he would have been sentenced to death and so how do we make that determination do we make it as reasonable people do we try to figure out what would impress jurors what do we do that's a good question your honor i by the way here it's a decision that the courts have had to make in strickland cases that this court has to make on on collateral view in federal criminal cases it's a legal decision as to prejudice looking at the evidence and it is a difficult decision but i think i submit that in this case based on the evidence that would have come in both by the defense and the prosecution and i would really submit that the prosecution's evidence really does strongly rebut any organic brain damage evidence counsel is given the fact that under strickland certainly on an append holster the world that we view is a written record or an oral record based upon his confession his lengthy confession to the police describing in great deal what great detail what he did we are as we are as competent to review that record are we not as would be a district court because your district court would not be taking new evidence it's not permitted to take new evidence is going to review what's in the written record exactly right here in this the very kind of thing that we have to do in all kinds of cases where we're determining whether you know there could be fair minded disagreement whether any rational juror could have made the determination to go the other way and so on this is not that uncommon for us to do that it is not uncommon in fact your honor in even in ed cases that involve non death penalty situations this court routinely can affirm a district court's decision on any basis apparent in the record and the court has questions on that claim i can briefly address the issue regarding the restraints the again the issue is whether or not the state courts decision was one reason wop cation of then existing supreme court precedent at that time there was no u s supreme court case saying that it was constitutional err for the defendant to be restrained in the penalty phase the state courts decision therefore cannot be an unreasonable application of supreme court precedent and i will be doing also a twenty a j letter regarding the supreme court's decision on monday unclever says frost which had a very similar situation there the question was whether it was structural air for the court to limit or not include it and i counsel is closing argument and what the supreme court said is we have never reached this issue the state court decision cannot be an unreasonable application for that reason his due process claim fails the ineffectiveness claim on the wrist on the restraints issue the state court did make although my learned friend talks about first impressions that's not the standard for determining whether or not there was prejudicial air it's not what was the jury's first impression i case as a whole is a reasonable probability that but for counsel's failure to jack the album would have been different and in this case there's not that this court recognized and cox versus eris the removal of her strengths can actually suggest that that's all i have less the court has for the questions on the other issues i would ask that the court affirmed that this was one question because you think the lack of prejudiced determination with respect to that was strains is transferable at all to the lack of prejudice determination with respect to the value to prevent present brain damage evidence now i understand that the court didn't do that one but it alot of the things that it sadden terms the overwhelming nature of the evidence and things like that would be the same kinds of things it would consider where we would consider what we're looking at that is yours is there some transfer ability in those findings that i do not know your honor prejudice on the other i don't think the supreme court has addressed that and it's my understanding that if the court has not reached a prong under strickland this court's review if it determines twenty the failure to object to the shackles which prejudices mr aylmore in some way can also be read in combination with their failure not only to do the brain damage investigation but the fail to investigate anything about future dangerousness remember this is one of two mitigating circumstances that are specifically it down to five in the jury instructions and counsel presents no affirmative evidence on it despite the fact that it's theory of the case he does no investigation on it whatsoever and then he fails to object to the shackles which were put on by i want to try to move out of the pin holster zone of danger because the the defense theory in this case was that mr elmore was remorseful but even investigate that theory conviction counsel spoke to those people what what is the standard here i agree that you strongly disagree with the approach that counsel took in this case and you agree they should never  you made that determination which is what he said he did then the reasons for it because of the mark jury the fact that he may not have done it in the way you did is that does that mean it's he's violated the first  well i think that it does but let's just narrow the focus to remorse because because we don't disagree that remorse didn't have the potential to mitigate it did frankly it but let's look at what he actually presented and what he investigat  and that's all they investigated so let's look at what was available to support their defense and it's incredibly compelling the jail chaplain he felt so much remorse and so much guilt that in the beginning he couldn't even talk about god he was so ashamed he felt he couldn't turn to god he was convinced that even god couldn't forgive him donald pierce who was the jail sergeant and they any prisoner i have ever observed mr elmore spoilers never contacted me about the possibility of testimony i would have testified to the facts stated in this direct declaration if i had and subpoenaed now the state court makes the mista concludes that those people were and were spoken to they were not as their declarations clearly provide let's let's go back to the question i asked you to consider before let's assume you've got all this and we conclude that counsel was deficient for not is an objective inquiry of prejudice the question under williams or says taylor is taking all of the post conviction evidence and adding it to the evidence that was presented at trial and adding in the evidence that the state would have presented in and put in the post conviction review proceedings absolutely and and let's be clear dr levine agreed that mr elmore was brain damaged and he agreed that that was the investigation that needed to happen there was some disagree so i'm deficiency he's lying he just says i'm not sure deficient but my question is would it efficient one likely have resulted in the question is ultimately is whether your confidence in the death verdict is undermined such that you believe there's a reasonable probability that at least