case there should be nothing in this record that gives you any confidence at all in the outcome of the trial from beginning to end trial and a poet counseling failed mr davis i think to to put the argument in context i want to start with a quote from this court in andersen versus sermons which is cited in the briefing but it's for seventy six dollars after one thousand one hundred and thirty one dollars i'm quoting from page and forty three where this court said cognizant of the overwhelming importance of the role mitigation evidence plays in the just imposition of the death penalty this court agrees with the district court and concludes trial counsel's failure to investigate and discover readily available mitigation evidence amounted to constitutionally deficient performance that's what we have here from the very beginning of the case trial counsel should have known there were red flags abundantly about mr davis mental health problems almost immediately upon getting appointed to the case original trial counsel sent mack edgar to the oklahoma county jail dr edgar is an employee of the oklahoma county public defender's office and as was later testified to in the evidentiary hearing by trial counsel the office every capital case sent dr edgar over to the jail to check in on the client or unquote and do a preliminary gatekeeping function on what issues the client presented edgar's report which was attached to the hay vs petition is attachment for which it was also one of the exhibits in the evidentiary hearing so it's in the state court records as well d dr editor says that mr davis is quote paranoid that he was hearing command auditory hallucinations during the crime that he suffers from delusional thinking major depression and had previous suicide attempts he also says that he's of low likely low average to average i q with learning disabilities chronic serious major depression with periodic psychotic episodes and chronic auditory hallucinations that trial counsel clearly put enough weight on doctor edgar's screening interview that they filed a competency motion to have  mr davis evaluated for competency yet they did none of their own follow up test and they didn't hire a psychologist they didn't hire a psychiatrist at that point to do any testing but as a result of the competency motion dr peter roust and comes into the picture his report is also part of the record he was employed by the state forensic hospital so he's not a defense expert he spent an hour and a half at the oklahoma county jail with mr davis that was it  even in that hour and a half he was able to recognize st of all that mr davis was heavily medicated that at the time he was on seroquel prozac and tragedy so as the court knows circles are pretty hard core anti psychotic so if the jail had mr davis on seroquel obviously there are issues and what dr roush determined at the time was that mr davis was in exhibiting any psychiatric symptoms he didn't say he didn't have any psychiatric problems he recognized the previous diagnoses of major depression paranoia and hallucinations but determined that when medicated he wasn't exhibiting then cathy hammerstein comes in the picture who's the attorney who wound up taking the case to trial and is the one who our ineffective assistance of trial counsel claim is primarily directed against  one of the st thing she did upon getting in the case was withdrew the competency motion and waived the competency jury trial just put an end to any mental health the better investigation or evaluations anyway let me be clear that we're done we later find out by a memo to the file that was originally submitted under seal during the evidence or hearing but was subsequently unsealed in as a result of the hideous petition that ms hammerstone apparently had a phone conversation with a doctor to resolve there's nothing in the record from to resolve there's no report there's no testing there's no evalu by to receive all but there is a memo that ms hammerstone wrote to the file it's dated january nd of two thousand and seven i say it's dated that because we don't really have any way of knowing for sure when it was written because the direct appeal counsel who we also allege was ineffective never asked ms hammerstone about it and the state didn't know about it at that time so they obviously didn't ask her but what's significant about that memo and a lot of weight was put on that memo i think by the district court and by the attorney general's office as showing the strategy for not pursuing mental health well let's let's  carefully st of all it's not a direct conversation if we take what the memo says is accurate it's a voicemail that ms hammerstone received from dr hall after the holidays the memo says that dr hall had quote ceased work on nick's case because she does not believe she can be of any assistance to us the next paragraph the nd paragraph in the  think is critical she sets out what it was the dr hall did dr hall saw mr davis at the county jail for several hours we don't know how many hours that is and and this is the important part after reviewing our reports of interviews with family members now it's examine that for a nd so it's it's defense counsel defense investigator interviews with the families so st of all what sticks out about that we know that dr hall didn't review dr edgar's report because the memo doesn't say so didn't have dr rouses report because the memo doesn't say so what she had was interviews with family members now we also know from the evidentiary hearing that the family members that trial counsel had had interviewed by that point were the family members that gave the an accurate depiction of what mr davis  childhood was like then there were the family members that painted the idyllic picture of a great childhood on the farm with abundant animals to eat vegetables everywhere and we know from the subsequent testimony that ms hammerstone or no other trial counsel had talked to the witnesses that would have given the other side of that story so what dr hall had to rely on was inaccurate certainly incomplete because it didn't have any of the mental health information and apparently ms hammerstein wasn't even concerned enough to call dr hall back and ask her any of those questions because her memo is based entirely on the voicemail i take that back she does say she spoke to her we don't know exactly what they what they spoke about we don't know but that  the rest of what i said i stick with she didn't have the testing she she had the inaccurate memos i apologize about that mistake when you're honest based solely on this and dr hall's off the cuff well that established in standpoint it is drive by it is off the coelho because let's let me put a different way i mean ultimately you've got to tell us you've got to convince us that the o c c a which said this was reasonable for trial counsel to rely on this experienced expert who had testified apparently been an expert in multiple capital cases and who had spent several hours with this defendant that it was reasonable to rely on and we we've got to say that no fair minded jurist could have found that that was reasonable how how did we get there it's ocus on that and that's exactly why i started with the with the hearing that quote there's always a reason why these clients do these things and that she investigates mental health in every case now in this case her or one of the few early things she did was the real the competency hearing and from this memo we know that ms hammerstone had no reason to believe that dr hall did any testing did any evaluation and was basing her opinion argument that this was somehow unreasonable no reasonable jurist would have made this finding i will and in addition to anderson i would rely on this court's opinion hooper which we also cited and hooper was a i would submit very analogous case where trial counsel again had a very abbreviated very incomplete expert opinion and made the intentional decision some would say strategic to not follow that up with any further testing because and i'm quoting from this court's opinion at page and seventy in hooper mr levy claimed he feared the result of such an evaluation would be more harmful than helpful because a more comprehensive examination might establish conclusively that the tensioner did not suffer from brain damage that will precisely what the found that ms hammerstein did in this case the case so we know i don't know how you compare that i guess that's the case where the the expert's report actually recommended further testing and said this there could be organic brain damage counseling made the intentional choice to proceed with sort of this half correct half baked argument knowing that that expert had recommended further testing and knowing that it was in a certain diagnosis we don't have that here we have this expert apparently saying you know after her time in her review of what she had that this was this man was psychotic and i don't see this that the same you know certainly did not recommend further testing in fact seem to recommend against it so how is council then similar in this case when she proceeds with this well a lot was made information a lot was made by ocha about how experienced it was hammerstein was in capital cases i believe the state refers to her as one of the top five capital litigators in oklahoma clearly any competent capital litigator at even back at that time would know st of all that anti social personality disorder which is what dr hall opined about based on no no forensic evidence anyway that that's a rule out diagnosis that's that's should not end all be all that's not enough to scare you away from representing your client zealously we also know that post traumatic stress disorder which we now know and the state court knew on post conviction play that i thought i thought dr whole is pretty definitive saying i don't need to do any testing this guy so clearly psychotic or whatever the terms i think a psychopath  that it's one of those really obvious cases there's no reason to give a standardized test and things like that well except well why do you say it's a lie he's i'm sorry we now know that that was wrong well you now know that you have another expert who says to the contrary but this is not you there are a couple factors in play here if if you have some confidence in dr hall i don't know why dr dr hall been helpful to capital defendants in other cases and you get that kind of diagnosis from dr hall then ok i will go someplace else and try to find another psychologist or psychiatrist will give me more favorable diagnosis you could say that but then you realize if i put on psychological testimony they're going to be able to find someone just like dr hall and then i'm really screwed because that's going to be very harmful to my case why is it such a terrible strategic decision to say you know what i think this is not going to be the way we should put on our let's get this right i think to call with dr hall did a quote unquote diagnosis stretches it beyond its limits she didn't you can't no self respecting mental health expert would diagnose without testing it's like if you went to the doctor and the doctor says i don't have to do any testing you i can tell you're the kind of person that probably has diabetes that's not what experts do she met with mr davis for all we know on one occasion maybe mr davis was having a bad day that let me pursue your quibble little bit say i know this field better than my expert so i'm not going to believe her and i should go ahead and have it tested anyway or i should try to get another expert even though i know that there's a decent chance that i'm going to be pummeled the trial by someone who takes the same view as dr hall is that we're saying attorneys duty is to is i think in this unique circumstance where the attorney knows st of all the their attorney knew several things the attorney presumably knew about dr edgar's conclusions and knew that dr hall did not know about those conclusions hall were not deposed they were not questioned there's no affidavit the interview of them regarding more about what they discuss d no and that's part of our appellate i assume that that's that's because of the ineffectiveness of counsel at the state level that's correct  subject to get back to our mutual quibble this isn't a case where we're we're necessarily claiming that dr hall was in effect and there's no ineffectiveness of it of expert it's it's trial counsel if it's true as oca found that this is one of the most experienced capital litigators in oklahoma then also should have known that as a successful or experienced capital litigator trial counsel should have known that especially when you have t conclusions of dot dr edgar and now this doctor comes in without that information that you can't rely on that opinion of the expert to cease doing any investigation of mental health and on the in response to the sort of the the double edged part of this most of the bad stuff other than the a s p d label wound up coming in any way in the jury knew about mr davis past the door or the bad part because that all came in as part of aggravation what they didn't know was  didn't interview dr hall or a trial counsel about the conversation they had or do we just know that they didn't put anything on the record what we know about appellate counsel  is this and that and i'm trying to respond to your honor's question but i want to put some meat on the bone this original appellate counsel was a woman named kim bays and we know in the original direct appeal brief and the dollars motion that eventually got the evidence or hearing we know that ms bays was at least on the right track because she talked about mr davis mental health issues she she cited a number of cases talking about battered woman syndrome in the battered woman defense which i would say although doesn't use the term post traumatic stress disorder it's it's d so we know that she was going in the right direction we also know when i want to be very careful what i say here because the record is is not very complete on this but we know that after the evidence  was granted ms bass was removed from the case and stopped working at the office we don't know the record doesn't say why well but we know that she then left and andrea miller then came in and we know that we know what all the understood the claim to be because in their order granting the evidentiary hearing in re managing this is and this is a page two of that order and this is this is how oka describes the inquiry appellant seeks an evidentiary hearing on his claims of ineffective assistance of counsel in the st stage of trial for failing to have a qualified expert evaluate him and offer a counter opinion to the state's theory that you killed the cd with malice aforethought appellant asserts that with an expert witness he could have shown that due to his distrust of others he felt truly threatened by the deceiving presence and behavior towards him so we know they thought it was a st aid claim and then they say appellant asserts that in the nd stage of trial the qualified expert witness could have testified as to how the pellets childhood deprivation resulted in a heightened sense of danger and would have presented a cohesive and more compelling communication case again they're not using the term post traumatic stress disorder but it's what they're talking about  it's clear that's what they understood the claim to be now we get to the evidentiary hearing ms bases go on ms miller just like a trial when things seem to be going along ms hammerstone comes along and completely cuts off any mental health investigation ms miller now comes in and during the evidentiary hearing she affirmatively tells the district court judge the trial judge that not that we're  abandoning our mental health claim she says we've never raised a mental health claim that's not true but that's not accurate because they did raise a mental health claim and open new it in the riemann order and that's when this memo from dr hall comes up so what we know is a poet council least the subsequent appellate counsel was trying to run away from any mental health issue and do we know on what information counsel is doing that do we know that counsel had not pursued matters with dr hall talked to trial counsel and decided we're going to stay away from that or do we are or is that what you seem to presume contrary to the presumption victim assistance that the counsel just dropped the ball and didn't pursue do we know one way or the other all we know about that is that came up during an ex parte conference with the trial judge in which appellate counsel gave the trial court a copy of this memo that we've been talking so we know so you don't know so you do not have any lot because there's a presumption of effective assistance and you have the burden of showing what wasn't and i wrong about that well i mean you're right about what the cases say but the problem in a case like this is that appellate counsel was ineffective and the only person we could get that information from would be appellate counsel or dr hall or dr while we could get from dr hall if there were subsequent contact you know we couldn't get from dr hall what impact that had on direct appeal counsel no one could we if there were already well not only later contact but also what was discuss whether trial counsel said what would your opinion change if i read you the following excerpts from what the prior psychologists that said right but we don't know them we don't know that but what we do know is in post conviction when the case was finally out of the oklahoma county public defender's office to truly independent counsel at oids we know that they went to another actually qualified expert in la do because the only expert appellate counsel presented was a licensed clinical social worker who was not asked to diagnose but was simply asked to do a life social history but when post co him they went to a doctor do klara do and dr duke submitted an affidavit saying he's got post traumatic stress disorder so we now have both opinions so at the time oprah ruled on post conviction they knew that laura dube disagreed with who had done testing and done what experts are supposed to do had a at a different opinion and i would submit at that point reasonable counsel and i would hope reasonable jurist would put more weight on the expert opinion that was done after testing rabbit of them what we refer to as a fly by i see that i only have about three minutes left and i would like to reserve that for reporter thank you the question as to this issue is that it comes down to is whether a fair minded jurist could agree but the court of criminal appeals that trial counsel katherine hammerstone and at that point reasonably decided to terminate her investigation into a potential mental health issues and there are a number of reasons that a fair minded jurist could agree st of all dr hall did not administer formal testing she did note the petitioner scored high on the hair psychopathy checklist and said that indicates at the very least that over the several hours that dr hall was meeting with petitioner she was keeping track of and scoring that checklist in her head and several hours with him is on par with conviction expert dr duke who states that she petitioners childhood but in fact that was the claim raised on direct appeal and it was thoroughly litigated and rejected by the court of criminal appeals they provided a forty two paragraph discussion on that issue and found that w until the most favorable one is found and relatedly i would extract later on that the counsel isn't required after receiving an expert about you ation to tell the expert to go back and do more about you ation until a more favorable result is discovered shouldn't counsel and least said how about we do some testing how about we actually do some testing that seems to be what he's primarily suggesting here is that no reasonable attorney would have accepted that voicemail without inquiring further and saying well have you done any testing you know what is that exactly based on i mean a couple responses your honor st i think petitioner conceded this but it was not it was not just over a voice mail the way the whether you know that so i would agree there's there's not anything moralizing how much she pushed back on that or or whether she asked for testing however as is quite recently recognized in pasta l l b it in the intellectual disability context while an attorney cannot abdicate all responsibility for handling scientific in text technical evidence once an expert is provided with the information necessary to test defendant it's within the bounds of professional competence to rely on expert advice and here where dr hall had been given reports on interviews with sisters family members and with provided access to him for several hours it's reasonable at that point for counsel to rely on herself meant without  pushing for further evaluation or testing and i would say also that doctors are schemas him or stan had her own interactions with petitioner to rely on and again she's an extremely experienced capitol defense attorney and d's prison records from texas as well as his arrest history most of which involve guns women victims and fights with inmates d adopted a hostile snotty attitude and was dismissive of each incident he repeatedly feign that he did not know the man or woman who was the subject of the allegation when it grew tiresome i called him on the attitude tony that's the investigator echoed my assessment of next behavior nick then settled down though he was resistant to hearing accounts of events that differed from his own views and so i would submit that it failure to present shalonda mostly the social history expert and the failure to present petitioners brother and so to the extent that prevailing professional norms required counsel to do something for other as far as preparing the expert expert to require that particular psychological test be performed or that the psychologist have particular information before capital defense attorney can reasonably relying on an expert's assessment and i would also like to address  just because that is totally belied by the tissue nurse police interview dr edgar he was hearing voices to tell him to go inside and to shoot and then claims at the critical moment when the shooting happens he completely blacked out that is not at all what he said to police and he had a vivid memory of the time leading up to the shooting the shootings themselves never made any mention of hearing voices and so certainly trial counsel could know that it  would be disastrous to try to present that as any kind of mental health claim and nd stage because it was so thoroughly contradicted by petitioners police interview  d i would also like to say as far as the point of cutting off mental health investigation at the point at which katherine hammerstein receives the s p d diagnosis as the court said and rector counsels not required to pursue a fruitless investigation one much less one that would be harmful to the defense and also in penn holster the court said there comes a point when a defense attorney will recently decide that another strategy is in order that's making particular investigations unnecessary and that point had clearly come at this case at the time katherine harris and spoke with dr hall and i would like to address some of the other things that opposing counsel discussed this morning i disagree with his reading of the record in several points  perfectly that he had a viable self defense claim and counsel did not agree with that because it was foreclosed by oklahoma law and so he had expressed the desire to proceed pro se and so that's really what triggered the competency evaluation evaluation and i would also like to discuss how i've been focusing on the lack of deficient performance but there's also a lack of prejudice in this case as to in your view the same for both issues yes in the sense that they but the the court of criminal appeals referred generally to prejudiced and it one point they said something wrong lines of in particular nd stage there was no prejudice but that reasonably could be read they're just saying in particular that his uncle's house to get help on jamming it before he ever received the st town hall from to bring about a night which was about ten of six pm roughly an hour before the shooting he admitted that upon knocking at the door he heard a male voice and so that raises the question why he did not just walk away at that point if he was so afraid and hyper vigilant the crime scene photos show that this was a door to an external breezeway he still outside at that point just steps from a parking lot he could have just left and nothing at all traduced report explains why if he had p t s d and is so afraid and living in a state of hyper vigilance he would have gone over there in the st place he admits upon walking in he had the gun in his hands he he says once that he was scared but the thing he says over and over again is that he's angry betrayed cheated on played by t a grain he's mad at both her and her family who he says she turned against him and petitioner never makes any claim that he thought anyone in the apartment with arms afterward he admits that he called his parents and said he'd killed someone or thought he killed someone never says anything about i was frightened i thought it was being ambushed  when he calls contacts in texas to set up a place to come and hide out again he doesn't say it was ambushed and killed in self defense he lies and says i'm just dying to visit you and during the interview he admits he never told people he was staying with about the shooting and furthermore looking at the full evidence that was before the jury there's overwhelming evidence to show that this was a crime committed with malice of forethought and and not  door petitioner pushed his way and locked the door behind him which certainly doesn't suggest he was frightened if he locked himself inside petitioner was dressed in all black wearing gloves and holding a gun at his side he shot mr smith three times mis petitioner is making other claims about trial counsel not being prepared as i said before that was thoroughly rejected by the court of criminal of the evidence and that's talking about the so on to mostly mental health issue and then the very next sentence is the mitigation evidence presented at trial showed that appellant's mother physically emotionally abandoned him during his and then they go on talking about mitigation evidence the very next paragraph says the mitigation mitigation case presented at trial was credible and well developed  there's there's no evidence that they're talking about st stage president prejudice certainly even though they recognized in their remained order that that was part of the inquiry so did they make a and on that point i know the court is aware of this but at least want to highlight the fact that we still have pending before the panel a motion to expand the certificate of appeal ability to include the jury instruction issue which is the st stage issue and p t s d certainly had that evidence been presented through effective attorneys that would have changed the calculus for  whether mr davis was entitle to that instruction so that's the that's the st stage presence prejudice argument  talk about the fact that mr davis wasn't particularly happy with his with his counsel but he also talks about the psych anti psychotic medication he has among that the jail is treating him for psychiatric issues so i guess that begs the question of why in the world would a jail be spending money to treat somebody for psychiatric conditions that the state now says he didn't have clearly he had  them clearly that should have been investigated and it was ineffective not to so with that we would urge the court to reverse and any minimum order an evidentiary hearing on the claim thank you thank