dealing st with the unconstitutional sable rule then moving to strict one prejudice before then turning to the coercion that let a jury who had unanimously agreed they were hopelessly deadlocked to nevertheless eventually enter a powerful mitigating factors and attached to any capital defendant those factors are according to both discord and the supreme court use and brain damage jury knew that mr spears was just eighteen years old but the sable kept the fact of his profound brain damage from them the results of objective widely accepted scientific testing show that virtually all of quote profoundly changes the character of the penalty phase proceedings by fundamentally transforming the defendant's sentencing profile townsell did not have the tools to build this transformative penalty phase case because of the rule of sable st every court to consider the rule including this one has found that the rule is unconstitutional mr sears clears that bar there is no question that had mr sears had the means his counsel would have hired a competent mental health examiner that examination would have led to the discovery of his brain damage both the georgia supreme both mr gary and mr treadway confirmed in their testimony that had there been no downside they would have sought the evaluation because they saw clients seem disconnected from the dire reality of his situation georgia supreme court's decision on direct appeal is nevertheless the relevant decision for the purposes of this court's review that court's finding as unreasonable as a batter of the law because it unreasonably applies the hall to the oregon i'm sorry and because it is based upon an unreasonable finding of fact that the record reflected no chilling effect or other harm to mr shears we would ask that this court reach the sable claim and  mr sears right to the assistance of an expert under the oklahoma city assistance to the tools necessary to build his defense under griffen v illinois and two reciprocal discovery rules that do not unfairly argument i think it's possible to read the georgia supreme court's decision as ignoring some mitigating evidence that was introduced the state when the court summarized the evidence is that it was including quote the most relevant testimony that likely would have been admissible at trial but i can't tell what if any evidence the court may have discounted or failed to analyze can you identify any such evidence i cannot part of the georg opinion with respect to prejudice talks about some of the evidence being in the civil hearsay but it doesn't then identify a relevant piece of the mitigation case that would not have made it to the jury because it was hearsay  you know all of the aspects of mr sears bringing his background those were all documented in firsthand accounts from teachers who had experience with how he presented when he came to school with the fall out from his home life was from other family members those close family members and extended family members and some people who actually lived in the home with mr spears so i'm not sure what they're excluding from the calculus there other than to just say that this is another reason that the jury wouldn't of weighed the evidence is the weight of the evidence issue well it says that there is some evidence that would have made it to the jury that then it doesn't identify what that evidence is and there isn't any evidence that falls into that category at least no evidence that would have kept a mitigating factor from making it to the jury and the u s supreme court says and it's reminding opinion the fact that some of the evidence was hearsay and wouldn't have for a clue did it from being weighed by the jury so it's contrary to the u s supreme court's decision in this very case to say that any any appreciable portion of this mitigating evidence would not have made it to the jury let me ask you another question about u for review is not to know though then there was an unreasonable finding of fact of no chilling effect what in particular is the fact that you think is a really unreasonable or was unreasonably found that there was no fact that the rules existed is what entitles them to really find already as but as to the a claim and the other claims that this unreasonable finding of fact that there was no chilling effect or other harm is alive by the record trial  all up and down the supposed that record that they cannot move forward with an evaluation because of what the rule exposes mr hears to because of the other constitutional rights they would have to trade away and they say it the morning before they  withdraw the motion they say previously they make other motions to try to get around its most onerous application and then they make a motion to have an evaluate after the guilt phase so that any compromise to his rights against incrimination by avoided if you speaking to the expert after the guilt phase they say in their appellate brief to the georgia supreme court that mr sears is a man with a serious psychological problems and that they need reverse to soon as the road decision comes down they go back to the trial court a motion for a new trial and say we want our evaluation now the reason we didn't have it before this court knows is because of the operation of this unconstitutional rule so the georgia supreme court is looking at a record replete replete with a chilling effect with trial counsel stating in their place that just as why they didn't before with an evaluation despite the need for and so that they're entering a finding that the clearly and convincingly rebutted by the record that they have in front of them and even if you believe that there is a fatal deficiency and trial counsel's you know preservation claim even if you believe the trial counsel failed to stay at the moment they withdraw the motion defense motion eleven for the assistance of an expert if you believe they should have said we are only withdrawing this because we are going to be submitted to this or we're going to be subject to this rule that requires us to submit all of our results in our experts name and everything else to the state the prosecution if you find that's what was necessary well then trial counsel was ineffective in failing to do that if that's what's required to protect his rights and they know his rights need protecting because they recognize the unconstitutional application of the rule then they're deficient and failing to preserve the record is but on the prejudice problem the united states supreme court also held that in the face of a decision investigation the resulting penalty phase strategy could not be deemed reasonable on identical so with respect to the prejudice inquiry it is not simply the georgia supreme court carried out the task that they were given on remand and reweigh the evidence as directed by the u s supreme court and found that the balance came out somewhat less than sufficient to show prejudice and the real weighing that we have set forth there in the georgia supreme court's opinion is unreasonable and contrary to federal law and i'm not reasonable briefly one particularly compelling example of this is the court says that this evidence that mr shares was repeatedly sexually abused as a young child would carry quote little weight with  testimony from mr sears brother demetrius is eyewitness testimony to the abuse abuse that he himself suffered dimitris themselves also suffered and that he witnessed mr sere suffer and he had made disclosures of that  weight with the jury that's an unreasonable application of federal law the test is not whether that evidence would have been enough to convict mr serious cousin of the sexual abuse test just would one or more of the easterners have thought that this was information relevant to his culpability the u s supreme court says that it's powerful in that regard and the u s supreme court also said in this very case that any credibility problems with mr sears brothers and mr sears his brother were not enough to undermine the value of this evidence for medication purposes and yet the georgia supreme court turned around and entered precisely the opposite finding another particularly compelling example of the georgia supreme court unreasonably failing to weigh mitigating evidence is their primary consideration of the brain damage evidence and that primary criticism is that there is no reliable proof of the source of the brain damage in other words etiology the head injuries and the cocaine use they say you haven't proven with sufficient reliability that those two things happened to the head injuries and his cocaine use but the u s supreme court said in this case that the etiology of the brain damage and the sources the experts relied upon were not enough to undermine the power of the result objective evaluation he was tested and that testing measured catastrophic impairment consistent with blows to the front of his head the client has two scars on the front of his head his family recalls blows to the front of his head for which they sought medical treatment so again it's an unreasonable application of federal law and it defies logic to say that reasonable jurors would shrug off that evidence because mr sears had proved he failed to prove that he s injuries or failed to prove that he used cocaine regularly the u s supreme court said it said concerns about the sources the experts relied on quote do not undermine the well credentialed experts assessment based upon between twelve and sixteen hours of interviews testing and observation that mistress years suffers from substantial these are tests that ask me individual being assessed whether or not they endorse certain statements about themselves and their experiences and then a score is derived from that in them tory and it and the results of that for m is revealed very elevated scores and anxiety and other disturbances on those test mr sears indoor statements that quote he is so sad or unhappy that he can't stand it that he's dissatisfied  bored with with everything that he feels he is a complete failure as a person that he hates himself that he's lost interest in other people that he blames himself for his faults and that he feels irritated all the time  so there are objective tests that also substantiate what dr dudley is seeing about his functioning as a result of his staff around so and they also substantiate what's happening when the the other place in which the georgia supreme court is particularly unreasonable is holding up the strength and the virtue of a mitigation case that the u s supreme court said number of mitigating factors that were presented to the jury that are in fact compelling and most of those mitigating factors that he hears was well liked that he had never been in any serious trouble had no history of violence that he was polite and well mannered that his youth and immaturity and the fact that he was stranded over four hundred miles away from home all contributed to his commission of an uncharacteristically violent crime that he cooperated with the police sentencing him to death with devastated parents and all of those factors remaining except for the notion that he is came from a background that was quote privileged in every what the mitigation evidence in this case does even though it is not that evidence to marcus years is a child who was privileged in every way that the market shares had everything we all want for our children love safety encouragement a comfortable home a quality education they had no disabilities no impairments what timesharing is saying is the markets years is one of the eighteen year old who's in that category who's eligible has possessed a sufficient culpability but when you read this affidavit evidence and when you understand the affidavit evidence by the way that is corroborated by records by contemporaneous records when you look at that testimony you come away with just a completely different picture he's no it is not you know it's not shocking in the way that being you know a child being locked in an excrement dog pen is shocking but it is heartbreaking i would encourage the court to read the teacher affidavit this is a kid who is going home every night to a place you know house with absolutely love this that is per vedas by grievance and resentment where both parents are openly carrying on extramarital affairs both parents are constantly adage other sometimes violently where everybody prefers his older brother over him where he feels like the best black sheep where his father's disappointment and is palpable where his older brother is running a drug operation out of the kitchen that's what this kid is going home to and it makes that evidence makes the the argument that this is a child who was privileged in every way completely unavailable and that argument is one of the pillars propping up the state's case for death they need that argument because he's so young and they the crime is so out of character so in that regard i think that the georgia supreme court's treatment of the evidence review and to release inquiry were trying to picture reasonable jurors presumably angel fisher was a reasonable juror she was reacting to the strength of the mitigating evidence here his use the other mitigating factors as the georgia supreme court identified in the stranded far from home doesn't have any prior history of violence it's hard not to picture what this penalty phase deliberation would have to look like with the addition of this evidence how many other jurors might have been convinced to support angela fisher's point of view or it or at least at least what happened would not have happened that they would not have seen her position as you know illegitimate and coerced her into relinquishing her the notion that we have one juror who is so in favor of a life sentence that she held out in the face of this kind of coercion and to use kinds of threats over the course of three days is evidence that it's a close case i understand we're not subjectively dealing with verdict of twelve people it doesn't matter whether fifty one percent of the coersion comes from the trial court's actions or fifty one percent or more comes from the other jurors actions it's it's the the appropriate sentence or was she you know convinced that she had no other choice but to relinquish her vote and so you know it's broken into two separate claims there's two separate the evidence the georgia supreme court by a narrow majority determined that she changed her mind about the case as a result of quote normal deliberation that finding cannot be reconciled with common sense with the trial record with my sister's own testimony or with this court's precedents as the three just senting justices observed here the trial court did nothing to inform the jury that it should not concern itself with perjury or other extraneous issues or that a jurors response to what your questions was irrelevant to the current deliberations regarding a sentence the statements as a trial court did make provided little guidance the explanation of the foreman studios was open ended and nothing to spell the threat of a perjury prosecution against fischer and the trial court response could not have prevented fischer from abandoning an honest conviction for reasons other than as based upon the trial or upon the arguments of the other j i see that i am within a minute of the end of my time so if the court has questions i would take those now but otherwise i would reserve their my remaining time for  behalf of the attorney general's office asking that the court affirm the district court's denial of relief i would like to start with the st claim the sable claim and i think the st question i would like to address before the court is whether or not there is a state court decision and i think that requires a little analysis of what went on pretrial and what went on post trial pre trial counsel argued obviously that they did not want to turn over the names of their expert under sable and they did not think that was fair there were i think thirty two dollars or three pretrial hearings about that at no time did the trial court rule on that they went to ex parte hearing and they said and they expert other experts and all the tala just and i forget what the other one was the trial court told them i will make you turn over these names and till it goes up on air appeal when they went up on interim appeal they did not file a sable claim they did not they did not challenge it after they got done with that they came back but they still had pending a motion for psychiatric evaluation after the guilt  so that is the record that was before the georgia supreme court that happened pretrial post trial and a motion for a new trial is when they came up with evidence they said oh he was abused sexually abused and he had these other mental health issues and we would have gotten an evaluation if it had been for sable before the georgia supreme court they recognized stable was in error and they said we can't based upon the record here find a chilling effect because you would drew the motion you didn't get any kind of explanation and also like to point out that they still had pending the motion for psychiatric evaluation for the sentencing phase which is what this is really about they wanted that sentencing phase information i don't think there's any argument here they were looking for a psychiatric evaluation for the guilt phase so the question before the court then becomes was that chilling effect was that a reasonable decision based upon the act based upon the record that was there before the trial court and i would say absolutely i mean that's all they had before was no explanation they had no reason for withdrawing it and they still had a pending motion out there for psychiatric evaluation now i understand that the titian are is arguing that their failure to perfect their record is in counsel and it also somehow removes that marriage decision by the georgia supreme court because it didn't have all the facts that say hey this court had before it but that perfect the record this court has long held that you don't have a duty to predict the law so i think that would be an reasonable standard to hold on to under strickland and the constitution needing on to whether or not that but here in this record we have the facts that they're saying would have supported everything there at the motion for a new trial so i don't understand what i'm not clear from their arguments what facts but in calling versus the original state court decision was purely on a state law issue not a federal law issue and when the u s supreme court examined all of that they realized that oh no there's never been marriage decision on this by the state court the st marriage decision was on state law and then all the other state law decisions were procedural bars so that's why they could get to the merits of that and the new evidence because they were no longer restricted  is that there is a there i think there is that marriage really on the save a claim by the georgia supreme court there's certainly reasonable bases for that court to have made that ruling and i understand the petitioner also argues that the georgia supreme court's decision was contrary to ward yes i would point to this court's decision and whelan when they were deciding the same claim whether or not the state court's decision on the harmless error was reasonable under brac and in this particular case is there evidence to support them finding no chilling effect if there is talk helpful didn't explain and they still had a pending motion for psychiatric evaluation so there is reasonable support for that therefore it's not an unreasonable application of supreme court precedent or the if doesn't actually speak to the harmless error and alice's that you would need to do here as far as a he goes i understand they're saying it's also contrary to a key but it is not a he says that you have to have st of all you have to make a showing there you have to make a preliminary show significant mental health issue or serious mental health issue and that was not made to that trial court that was not made so i don't know how you would have been a violation without that st showing and you don't have the precluding them from attaining and mental health evaluation you have them withdrawing the motion so and under none of the supreme court press and they're relying upon do i see that the georgia supreme court in you with their request and not withdrawing the motion would be would the expert have been required to disclose his or her findings to the prosecution are you talking about a written report or not a written report or you just say if they talked to the da they would have to tell them their findings whether it's written or not i'm assuming that an expert conducts an examination  o some conclusions whether they're written down on paper or not currency will require the prosecution to be given that conclusion or set of solutions what sable speaks to i think what they've used it for is that they could get a written report but then those in the trial courts would say well you have to give a written report but they were going to require their expert to write a report and in this particular case what the trial  i can't i don't have anything to use the expert that would have been selected would have been not necessarily of the defendants choosing i there was testimony from trial counsel that part of the reason and this is from say hey b s this information wasn't before the georgia supreme court but instead haiti as part of the reason it didn't really want to go after psychiatric evaluation was because the trial for what would appoint mental health experts from central state which at that time generally the defense bar didn't think were particularly helpful to their client ok so that being the case why wouldn't why wouldn't the combination of that fact and the fact that you then had to turn over the report regardless of what is not have a chilling effect on the decision as to whether to go forward and have a mental evaluation conducted well i think the fact that they were going to a point that particular information trial counsel testimony was not before the georgia supreme court so that information that's not before them it was an argument that was made before them so i don't i'm not sure how you  could be yes your honor yes that's i mean some counties i mean and i think it has to do with where you're located and in georgia as you know kind of a big state and i don't think central state covered the entire state so maybe they could take them there or if they were fifty that answer yes thank you all right back to what the georgia supreme court did here the question is is there any reasonable basis for the georgia supreme court's harmless  determination and there is there is a reasonable explanation are there are there explanations on the other side of course that's i mean that's what makes these cases that difficult but as the u s supreme court just told us yet again this week if there's a reasonable basis for what that state court did then even if we would disagree with it in the st instance that's not enough to overturn what they did but here but here don't we have the georgia supreme court completely doing a one hundred and eighty degree about the and rejecting some of the rulings made by the u s supreme court are you so much for the ineffective assistance yes i thought  which i think is obviously this is a it's way to deal with this particular strickland claim when you look at what the georgia supreme court did st looking at what the u s supreme court did u s supreme court said are we're going to take what  this court has done here and we're just going to sing basically that it's correct and based upon this we don't think that the state to be escorted to proper prejudice analysis i think that saying that the u s supreme court made fact findings or anything of that nature is really stretching it and i don't think it's really i mean to say that they have get to dictate the way that you give particular evidence without having way that evidence in the tally of the circumstance and things contrary to strickland is well to the extent that my posting counsel is making that argument i don't think that and i'd also like to say that following the georgia supreme court's opinion it went up on thirty the u s supreme court on all the issues that petitioner has brought up and they did not serve on it so i think it's i think what the georgia supreme court did was they looked at the role of the u united states supreme court did seems like they would have talked about that simply they would have grant cert on that and said hey you misunderstood everything that we said especially since half of the a lot of that opinion explaining why they're doing what they're doing but i don't know that it has any sort of presidential weight in this court i agree back to what the georgia supreme court did again this is about whether or not the print court made a reasonable decision based upon the record before them there is a supreme court precedent that says you must give sexual abuse this much weight no matter what the evidence underlying it that that's an evidentiary matter that's not something that the supreme court can dictate to the georgia supreme court or to the state court and this particular instance i think that spins st argument there was look at that particular information you'll see that dear doesn't even say that he was sexually abused and we did at least you had we can say it he was sexually abused but here you don't have some see here you have his brother saying that they were sexually abused his brother who can be impeached i don't think there's anything inappropriate or unreasonable under supreme court precedent for pointing out that his brother can be impeached that's that's what a da would do and then all the other information regarding the sexual abuse w hearsay from the brother now i understand you know hearsay if it's relaxed and didn't think they but it's not completely done away with me the evidence has to be have something reliable under it and i i don't i don't see how that's an unreasonable terminations on their part that where you have affidavits one from a convicted felon and the rest just based upon hearsay to say and this isn't t erribly compelling evidence that he was in fact sexually abused when you don't even have him needing it to do it to the middle health experts so again we're looking at is there any reasonable basis for the jurors from court to  found this information carries little weight yes it's it does i mean in the scheme of things that juries always going to look at that look at that type of evidence and look and see whether or not there for libel evidence underneath going onto the other issue regarding the mental health determination by his experts and then how the georgia supreme court evaluated that when you look at what the testing and said he had brain damage but dr strickland also said that he had sorry my dog is barking else but he also said that that the testing wasn't all that he relied upon he also relied upon the brain injuries the insult to the braid are to his head and his drug use so the courts that are right we got to look at you know what supports those things as well because all of this goes into dr shortlands analysis and i say ok we understand that the family has reported in the affidavit that he had you know he was hurt but there aren't any medical records they don't say they're not they don't say they're discounting or saying it didn't happen they're just saying this is what the jury would see you would see that he had he had family and friends to say was hit my head and then you have no medical records to back it up ok regarding the drugs and cocaine use well d said that he used cocaine the only source that came from was in fact here's all the other affidavits they never no one ever said that they saw him in jest cocaine or smoked the  that so again it's another they're saying that dr sure clean was just off left field and making up things or saying the information that you're looking at here dr strickland doesn't strongly support exactly what you're saying and go a back to the  average range and he has an average i q so to say that he's one of the most impaired people doesn't really go with your testing either that i mean i don't see how there isn't a reasonable basis for all the decisions that the georgia supreme court was making there's a reason they're discounting it they're just trying to figure out how would your e way this evidence because that's their job they have to weigh it out and when you look at dr deadliest testimony which they talk about in detail i say ok he's got these mental health issues but dr dudley also gave aggravating testimony that he was he was with his sexual prowess and when questioned about the actual crime and how his mental health problems affected him regarding the actual rape and murder of mrs wilbur childhood net but if they had put up that his father was abusive or unloving or anything of that nature and they are they're saying we're going to take mr spears and we're going to put him on the stand it's not going to be like the affidavit where you have him lamenting that he wasn't good enough father you're going to have a man who's a paralyzed veteran sitting there saying yeah i gave my son home example the father had a strange kind of disciplinary notion for example he burned a fire outside of years in his brother's room because he thought they were too noisy and he wanted to smoke them out of there vilify his father and his mother and put them up on the stand and make them out to be the worst parents and that he didn't get all the stuff that he needed i don't know if that's not in and of itself somewhat aggravating maybe it has  i hear what you're saying and you know as far as making them out to be the worst currents or anything like that i don't think that's the point the point is and maybe maybe you're absolutely right it wouldn't really be very relevant except for the fact contributed you anything he might have done and the point of the defense is you know that is not an accurate representation of the family life he had and whether it would have contribut it's certainly not the case at least from the standpoint of the defendant that it would have needed and the jury should have had the opportunity to assess and so in other words the question is how does how does the state position respond to the context in which this is raised which is the prosecution haven't argued he had a very privileged lifestyle and he had everything anybody could wanted to turn to we wanted the best for him to care sure so i'm looking at it from the point of view is what the jurors primm court did they had to go back and re weigh the evidence so if you're looking at a real way then you would have had this other evidence before the jury and if the prosecutor had still made that argument then i think that the defense could have said well you know he wasn't that privileged this does undercut it but i don't i mean i'm not looking at the evidence from the point of view of this is what happened at trial this is what happened in state hey b s and comparing the two i'm looking at how the georgia supreme court looked at it we said we got all this we had this information that was presented at trial and we have all this new information over here and we're going to reweigh it and determine whether or not it would have created a real probability of a different outcome to the fact that the district attorney made that argument there i don't know that it's that relevant to the georgia supreme court prejudice analysis after the fact that that's maybe i'm wrong but that's how i see that and i would go back and also point out on the affidavit evidence regarding his family and the georgia supreme court did not say it was the nine they did not discount it they said ok let's just say it's all true we're looking at u s supreme court precedent where they have overturned a prejudiced analysis by state court it has been when they passed a horrific childhood and that wasn't present here maybe his childhood wasn't you know ideal pleasant maybe or  maybe not his parents weren't nice to him sometimes i think you know whatever it is it still doesn't rise to the horrific level that you have from the particular cases in wiggins and williams and from pilla which were clearly established law that time  at that time the clearly established law did not say that you had to find prejudice when there was any evidence of a difficult child so i again bring it back around to what it reasonable for the court to say that  yes they looked at all the evidence and they certainly evaluated that evidence and they said this is what we think and there's a bases for every single decision that they make in that record and i don't think that the u s supreme court to dictate to them the way they had to give any particular piece of evidence when they remained in the case back to the state hey be a score and i think it's you know exactly what was said it may be a closed case as far as the prejudiced analysis goes but where it's a closed case that means there are arguments on the other side and that means there's a reasonable basis for what the state court did and issue that would be the coersion alleged coercion by the four person and the rest of the jurors and then the other claimed the alleged coercion by the judges jury instructions i think  circumstances evaluation but here it still would require st to determine whether or not your fisher was coerced by the other jury members unconstitutionally and whether or not she was but since it is the totality of the circumstances analysis and it seems like it would be reasonable and common sense that the two different sources of alleged coercion  act together or in concert even if not intended to do so i guess i'm asking you is there any reason why we shouldn't be considering that together well i think your honor you had out there that they had to attend the jury and the what difference does it make whether they intended for the or for any alleged coercion that would have occurred to have worked in tandem with each other or not if that was the ultimate effect i'm just not aware of any supreme court precedent that states that where you have a juror given where you have jurors who are obviously antagonistic towards one another and you have to give the  allen charge if following that statement of deadlock that you could take those two things and combine it and create coersion question about that sure and sorry i just want to make sure i'm understanding you would agree though that we're two different forces that are creating collusion why why wouldn't we consider them together i understand you're not aware of a case that says that you should but are you aware of a case that says that you shouldn't and what would be and if not by the way what would be sort of the logical argument for saying that you shouldn't look at them in tandem first so i'm looking here at what are you know not made personally but the courts looking at what the georgia supreme court decided on this particular issue and so that will require that you st look at the i mean i don't have to i actually don't have to do any kind of order but let's look at what the how the jurors are treating each other coersion they're and there isn't any supreme court precedent that told the georgia supreme court that they had to take how the gers racking towards one another and the judge and combine it all together and their analysis in that manner so there would need to clearly establish all showing what the do or supreme court did was unreasonable but i'd also like to point out that what they did wasn't unreasonable when they said there's normal jury dynamics is that unreasonable finding  be able to prove alleged perjury and for instructions about that i mean that just seems different to me than the usual sure coercion and maybe you could explain to me why it's not well sure  and st i'd also like to point out that when the judge when judge daley got that she physically told the jury that she wasn't going to read that word are back to them and she was not going to charge them on perjury letting them know they needed to let that particular issue get so i don't think they were left with the impression that perjury was still on the table as far as what juror say don't want another i mean we don't generally get to that because of the know it ph that rule i mean that's that's what goes on in the jury room i have i have no basis for you know what other jurors say to other jurors very deliberations let me ask you this have you ever seen another case where there's a note from the jury to the judge asking the i've never seen anything like that but then again i have to come back to do what the georgia supreme court decided that it was normal jury dynamics that they didn't get along they were in tag sides and they yelled and screamed at each other is it constitutional for that to have happened is there clearly established supreme court precedent that makes that unconstitutional i don't see any of that i don't see any supreme court precedent says that i don't see any supreme court precedent that dictates how a jury must or must not deal with one another and that aspect it is deliberations they are going to argue and the u s supreme court has acknowledged that this rise to the level of constitutional coersion because she was difficult and the other side call their own and i i don't i don't think so i don't think there's any supreme court precedent that supports that  something materially different about a jury could take into its own hands the notion of seeking to charge another teacher with a federal crime and i guess that's the part that i would like for you to address well st of all i mean it would be nice if we had a definition of normal jury dynamics which i don't have but looking at it from the georgia supreme court's point of view yes you have been a goes out but you also have what else the georgia supreme court said and that's that angel fisher college educated lady you know she stood up for a long time there through those deliberations and so the fact that they sent out the note to meet the fact that they sent out the note that show wouldn't show under coersion unless the trial court had given a charge on perjury or read that stuff back or give any kind of credence to it i don't see how it's coersion you are saying that we need to consider the two together what the court instructions were with what the jury did on that yes yes i didn't do it i don't have to do it on both i don't know how you do it on the other a particular issue when you look over at what the charged them with there were two that there were two deadlock after six hours of deliberation they deadlocked and judge daily gave them a very passive allen charge there was and she said ok you guys can we can you please keep deliberating again nothing coercive there then they write those notes and the judge says you know i'm not going to give you the charge on perjury and i'm not going to read that stuff and hey everybody let's deliberate she never tell them what they're going to do and so i have to look at it from what she did and none of that was coercive and even after the charge from the last deadlock it was still whatever six hours before they came back with a decision so looking at what she did there's just there's nothing coercive in there and and so i don't see how you would say if there's nothing coercive here we get to add in what the jurors did over here especially if they weren't course if i'm honestly trying to answer the question and i just putting it together in my head i just don't see how you look at i don't see how you take both of those put them together and then shake it up and say well there's all this coersion because the jury thought the jury was being mean to ms fisher and the court is ever here saying hey everybody please just deliberate try to get along and you know i'm not giving in to your threats of perjury what the juries did was course that even if you put it together that together combined to something coercive and less you just look at it from one point to it and say oh this is all terrible but if you look at it as the georgia supreme court did from all the points of view i think there's a reasonable basis there for what they did thank you i'm grateful that the court has given us some extra time to get through all of these issues but i suspect that i'm going to be able to yield some of that time that to the court i just would have briefly make a couple of points about the record and about the evidence that came up during this graham's argument and take any questions the court may have before briefly concluding with respect to the idea  that this trial counsel could not have made a showing they have eighteen year old descendent with a completely out of characteristic crime needs to be explained they can make the showing and they testified in their affidavit says they were confident that they defense in building and they can't obtain that expert here there's nothing that would keep that expert from turning around and and sharing every discussion that he or she had with the trial lawyers with the prosecutor trial counsel when they're evaluating this from their perspective at the time they don't know what we now know they don't know that his deficits are measurable on objective testing they don't know that what he has going on isn't simply a matter of clinical judgment they don't know that every expert is going to get the same results they're worried and antagonistic experts will see him as perhaps anti social or have to it so they absolutely were subject to the disclosure that stable stable required and they knew it with respect to the i o c for failing to perfect  casting this as a failure to tick that the change in the law isn't remotely consistent with the record here trial counsel knew their client's rights were being violated they stated that over and over and over again claim on appeal that's their testimony and if you take miss graham at her word that they were not required to put on the record at the time they withdrew the motion why they were doing it because they weren't required to see lead to relief and it doesn't you know it doesn't matter if it's the ineffectiveness isn't just going to be back to record or it's the claim as presented during the state haven's proceedings or it's the claim as as presented on direct appeal he didn't get the expert he was entitled to and the most relevant evidence about his culpability did not get to this jury all eighteen year olds have more judgment more ability to put to control their impuls records that trial counsel didn't seek a single record so we don't know what medical records might have been available in the early one thousand nine hundred and ninety s that were not available some ten or fifteen years later with post conviction counsel investigate idea that really abject privation and a horrifying childhood is the standard for finding prejudice in a capital case if that's true if that's the only kind of evidence  a strickland prejudice finding or even merit a serious way of prejudice if that is true why on earth would the u s supreme court expend its scarce resources childhood being placed in front of the jury and that is what in reasonable probability led to the outcome here it was not just the angelfish or is it subject to words from the other jurors or even mistreatment from the other jurors yes there cussing at her yes there ostracizing her yes they're calling her names but they have also questioned her role as a schoolteacher they have threatened to have her charged with perjury she is a young african american woman on a jury in cobb county and nine hundred and ninety three dollars with nine men of them older white men who have now threatened to up and her life her experience based on her her college education her way with all her experiences that they can do what they say they can do and judge daily does not put a stop to it it wasn't just twice that they declared of a deadlock like respondent said it was three times over the course of two days that she reaffirmed her life sentence to the court the other jurors morning after all that has happened there's by saturday afternoon there's no other way out for her other than to change her daughter mind h so what is there why obviously think is a reasonable finding by the georgia court why do you think what makes this finding and reasonable by the georgia court your view that it's not just normal regular jury coercion that we see in every case well the threats for one thing and then the trial courts handling of those threats for another  it's not one piece here if they had just called her names or tangled with her or questioned her judgment or you know that's not what happened here and maybe that does happen is that we want to have it but whether that is over the line from pressure to coersion i don't know and you don't need to decide what happened here with the threaten to up and her life they threaten to have her prosecuted and judged they didn't shut that down they said oh you're a schoolteacher you're near our children and for hours hours on end to the extent that she later had health problems which the court would not let her testify about she lost sleep and she said she was frightened that's duress that's to rest in every area of the hall that's not someone who can now exercise their free will to cast a vote consistent with their conscientious scruples and that's the standard state's case for death here was still the top three pillars each of which was inaccurate or misleading because the jury was deprived of the most relevant evidence on that point first then there were there was the notion that mr sears was a child privileged in every way that he had all the benefits of a loving home and was a typical teenager unencumbered by any disability had trial counsel conducted a constitutionally adequate investigation the jury would have heard this was far from true in addition but for the application of unconstitutional discovery rule and counsels ineffective assistance the jury would have learned that nearly all of mr sears the same age peers are possessed of greater judgment impulse control and the ability to tune out distracting stimuli the nd pillar of the state case that mr sears and not mr williams set in motion and carried out the kidnapping also begins to crumble how the jurors learned that williams planned and carried out a similar attack just three months later at the cobb county jail and the final mistress years was the worst inmate in the cobb county jail and will be an ongoing dangerous sentence a life in prison that there till it like life crumbles with the addition of the brady evidence regarding williams attack and with the addition of the evidence of mr serious brain damage which i'm sorry had an accurate picture emerged one that included not only sears and youth his good natured personality and the influence that williams had over him but also included his profound brain damage his difficulty manag