david scott frank's before i get started with my argument i'd like to make two quick points that i hope the court will keep in mind as i proceed to if i could ask you just to speak right into that microphone to keep your voice would be much appreciated thank you can you  problem is jackie mason just went to the wrong direction saying i'd just like to make two quick points that i hope that you keep in mind throughout my argument today the st is that the district court was right in this case no reasonable attorney could have hoped to prevail at the guilt phase of mr franks as trial the states have against and against mr franks was staggering and even his own counsel called the case on winnable and yet trial counsel spent three and a half years developing an outlandish alternative theory of the crime involving an additional group of perpetrators from the so invention of the lawyers but the theory had some basis right i mean it's not cooked up out of whole cloth either the theory had a very very very little basis well i mean so i guess i'm you know the dixie mafia the contrast between the way the murders went down the reference today so it's not nothing i mean it wasn't it doesn't strike me as completely crazy sure the reference to they in the nine hundred and eleven calls mrs wilson does say they're hurting my kids and she's immediately asked by the ninety one on braider who is hurting your kids david franks david who frank's please hurry when she calls back she has a very similar phone call who did this to you did your husband know ma'am david frank's collective  right what about things like the other piece of evidence which was that there was a witness who saw four men drive into the parking lot of frank's pawnshop that night get out of the car push three men through the door of the shop in the morning of the crime is when the two the terms were shot and killed mrs carlyle came forward a year after the crimes in this in this case to provide that account of what happened that day her testimony as the vividly brought out at trial was a little bit questionable she had incredibly minute details of everything that the four men were wearing when they got out of the car despite saying she was driving by at thirty miles an hour and most importantly that testimony actually conflicted with the testimony that mr franks presented in which way he said that they entered the pawnshop through the rear of the pawnshop there was no pushing into the pawnshop by mr franks is a count that his tr put up did you confirm that there were four men who came in the dixie mafia guys came in that night in substance that was his account he did give different statements of how many other men were involved but ultimately what was presented was yes there were four men at the pawnshop scene and then two men in gainesville in the hall county scene what about the phone call that was placed from frank's corner shop at the purport of time of the offenses and whole county s at that moment so we know that david was not there at trial david's girlfriend said that she made that phone call she came into the pawnshop she looked around for him she was afraid because it was dark and she picked up the phone and she hit redial and dialed the wilsons number and the phone records did show that the wilsons phone number had been the number that was called before that she testified that a girl answered the phone and trial counsel i think believed her account because they could have called jessica wilson to find out if she had been the one to answer the phone or not she was the only young girl in the house at the time and they didn't so all of the testimony at trial did not support the dixie mafia theory once you start looking at the few pieces they had it seems pretty clear that this theory was not going to win the day and in fact mr franks had confessed to a version of the crimes that as the district  strickland for the state court on performance to reach that conclusion sure and i i do think it which is another way of saying that no reasonable jurist could have said what the state  well that that is what that the district court found in this case that no reasonable attorney could have hoped to prevail at the guilt phase of this case that's exactly what the district court said and then they also said you know this contradictory finding that that h counsel's performance at the guilt phase was reasonable and those two things cannot be the case at the same time if they can i mean it might be that you have a fairly hopeless case  so you pick the lesser of evils in terms of your defense strategy big the least bad one i hear what you're saying judge pryor and i think what i'm getting at is that trial counsel didn't spend fifty percent of their time investigating this guilt phase theory just on the off chance that hey maybe that it's the mafia was really involved trial counsel devoted almost be entirety of their investigation to this theory at the expense of developing meaningful medication for mr franks for the penalty phase of his trial and the prop so what so what though do you do with the state court i guess i take it to be a factual finding that the medication investigation was extensive i think is the word i mean is that is that a factual finding to which we have to defer your burden to show clearly erroneous yes that is a state or a factual finding they did find that the mitigation investigation was thorough and reasonable  so i have a few responses to that st of all they did the record does not show that they met with them ten times as the billing records don't support that andy pennington the investigator in this case does at one point say he spoke with them and different members of the family approximately ten times over the three and a half years we know that there are only a couple of meetings with the family one of which occurs right before trial counsel testifies that their background investigation is really limited to character evidence they testify to that specifically multiple times and motion for a new trial and state a b s and in fact the questionnaires that the courts repeatedly discussed to you know for of that trial counsel had done so much in  and thoroughly investigated mr francis entire background are actually completely limited to character evidence they say how long have you know david described his general character have you ever seen him be violent toward anyone or anything and provide specific examples  they spent time going to the family members provided information on background growing up childhood share so that is my nd point which is the trial counsel completely ignored many many many red flags that popped up in this case that would have led them to discover the medication evidence that state t v has counsel found regarding mr franks a substance abuse disorder and brain damage but didn't they know i mean that they knew that he had a substance abuse problem and chose not to use it so they are what they did what they knew was that he was on drugs at the time of the crime and sought to address that point briefly what they presented to the jury regarding his to his drug use was eighteen years old it my understanding the record evidence is really limited on it but it seems that he was maybe friends with the police man he had asked a policeman to sort of not be around while he robbed i think a shell station that he worked at and then in the period immediately preceding the crimes he has a theft by receiving conviction which is pretty common for a pawnshop owner which david was and as i hope i laid out well in the brief i think that that was kind of a part of david's downward spiral and in the period leading up to the crimes in this case so i want to go back to a couple of the other red flags that they missed counsel said that they did obtain mr francis school records and even though the record is a little bit unclear on to as to whether they did that they reported that the records contained nothing remarkable the records showed that mr franks failed three grades and dropped out of school by the th grade which is certainly a red flag as the supreme court has repeatedly found an repellent in porter and this court has found in many cases as well they did not request medical records and so they did not learn that mr franks had a series of head injuries one when he was four years old and then he was thrown from a vehicle when he was eighteen years old and experienced seizures in the hospital following that accident i take them one of the time the school records i mean actually sort of agree with you that this is a sort of a stunning failure an elementary school but given the double deference the judge marcus was referring to don't we don't know we not only have to conclude that every reasonable lawyer would have dug deeper but every reasonable jurist would conclude that every reason to avoid it would have to would have dug deeper and that seems like an awfully steep hill to climb i mean you and i can agree that right that seems weird failed more grades than it completed something  you know is it is it really true that every reasonable judge would conclude that every reasonable lawyer would dig deeper of that point i think so i mean failing three grades and dropping out of school in the th grade is certainly a red flag and the supreme court has that he had done that in order to help support her but certainly failing nd rd grade and th grade once before then just dropping out altogether is a red flag and i it is my position that any reasonable jurist would conclude that any reasonable overwhelming case it seemed to me in so many ways and such a powerful showing what reason is there for me to believe that the determination by the state  prejudice was contrary to or an unreasonable application of clearly established supreme court so as this court just found in jefferson last week the new medication evidence that was presented and state he is proceedings would have profoundly altered what was presented about mr frank's sentencing what the jury heard in this case was that mr franks was a good guy he was kind and gentle to everyone and violent and nonviolent and yet the jury had convicted him of what is that was the theory he told his lawyers and that that that you say they are in reasonably pursuit the whole point is that he did commit a crime i think it was on reasonable yes i agree with you that it was on reasonable for his counsel don't think that's the right thing for me to do for my client but i stand by my statement that the evidence was overwhelming against him and the trial counsel was on reasonable for a full so you know you don't have to convince me psychologists who testified that it was directly and immediately and in explaining the crime itself that you might have a very different story here but when i looked closely at what grant and ant said i didn't see anything remotely like the record that we had in jefferson what am i missing there well dr grant testified that mr franks had a number of insults to his brain while he was growing up in the developmental when he was four or five years old he fell off the porch and hit his head on a sort of a large rock or a boulder something along those lines and broke his head but none of them say that he sustained organic brain damage the most they could say is that was possible that he had shown some deficits in executive functioning planning and judgment as opposed to what we had in feral or what we had in jefferson let's say so it was a very different sure of the way the medical evidence that was presented ok i i read them as quite similar what dr grant testifies is that he has cognitive impairment and i believe that the term used by experts is brain injury which i take to mean brain damage and in puerto i believe that the term that the supreme court used was actually brain abnormality so i  that state he has evidence of stablish that mr franks does have a brain abnormality that is the result of some combination of these insults that he experienced so correct me if i got the record wrong but didn't  the i q tests show what ninety to ninety five grant says not even remotely not even borderline mentally retarded child and he says i think you said the deficits were not glaring his word and then  also says most importantly perhaps that the deficit's didn't affect his ability to distinguish between right and wrong so i want to try to address all of those you know it's so it's my read on dr grant's testimony that he said that it's not glaring in reference to like an intellectual disability that that statement immediately follows a discussion of intellectual disability and certainly i have not posited that mr franks had an intellectual disability but intellectual disability and brain damage two very very different things and even if mr franks knew the difference between right and wrong and was clinically and legally sane at the time of the offense and at the time of trial that does not mean that he was able to conform his behavior and conduct to the law so somewhere between intellectual disability of the sort that we might typically categorize as mentally retarded we understand that sort of a special category and an inability to distinguish between right and wrong that there is this there's this brain abnormality that sort of slots and somewhere else one's inability to conform one's conduct yes and i mean the supreme court and this court have repeatedly found brain damage frontal lobe damage deficit executive functioning memory issues struck me that the nature of the mental health experts testimony was very different plane than what we had here perhaps i'm wrong about that but that is really what i'm asking you to say even accepting that there was some abnormality some diminution in executive functioning etc that when you looked at the nature of the crimes here one the extraordinarily horrific to the defendant was able to elude the police for nine days three that he took a number of steps that the state court concluded were designed and intended to elude and cast doubt on him being the the killer in the case including attempting to kill the children murdering the wife shooting wilson and the other coord at the at the point shop and then proceeding to escape changing cars on multiple occasions etc it suggests that state court could reasonably find this and not that he was quite capable of functioning executing decisionmaking at a surprisingly high order and beyond all of that he managed to run two businesses for extended periods of time couldn't a state judge look at all of that and say reasonably that i don't think the result would have been different i will probably run over and  so as to the businesses i want to address that st i think that mr franks has a record of business ownership is actually quite consistent with brain damage he did a pretty terrible job of running these two businesses and ran them into the ground in a pretty short period of time after his father in law played out of businesses as for the rest of it i think that this picture of mr franks that would have emerged if counsel had developed this compelling mitigation of events of brain damage and substance abuse disorder it would have been persuasive to a jury i don't buy that that it was no competent dirt turny would have chosen not to do it and no state court could reasonably conclude otherwise yes i think no compet attorney knowing that his client had that really goes to the heart of judge marcus is question sure i hope that i am not just you know i disagree i think it should have been done this way right right i hope that i am answering properly and that i'm understanding your question accurately now i think you got it ok i do think no reasonable attorney would conduct themselves the way that mr franks has counsel conduct themselves in this case they didn't follow many many red flags showing that mr franks had these significant impairments and made really no effort whatsoever investigate any mitigating evidence you're right this crime was aggravated all death penalty cases are aggravated and it was councils number worse than others some are worse than others certainly this was this was this is on the the bad end you know this court has previously found in another triple  murder case involving children having their throat slashed well involved in cooper there was a triple murder and there was a child present at the scene of the crime the facts were very similar and because of mr  educational attainment and cognitive impairments this court found that his trial counsel had performed and effectively by failing to raise any of that and the penalty phase of his trial thank you much and you have reserved your full eight minutes for rebuttal thank person that was the last thing that the court touched on with mr franks counsel and as for prejudice your honour's the state he is court found no prejudice in a reason that there would be no reasonable probability of a sentence other  death in this case because the evidence offered by mr franks in mitigation was either the additional evidence excuse me offered in mitigation was either cumulative in part or weak and it was weak because it was  and undermined by the record itself st dr grant as judge new some pointed out said that there was nothing glaring in it in the opinion of his evaluation he also said that there was nothing in his report that would make attorneys hearts palpitate so what about what about the your adversary's response to me that says you're talking about mental disability put that aside then you're talking about sort of moral sort of culpability put that aside let's talk about his ability to conform is conduct societal standards and she says that's what i'm talking about so the the heart the heart palpitation glittering deficit she says go to either bucket one or bucket three but not book two what about that so as to his i'm not being able to conform to his his conduct to the law i would i would go back to what trial counsel testified to s and the motion for a new trial and he testified to this type of information not being mitigating and that a hall county jury would find this type of evidence to be aggravating because part of that information that relied on had to do with drug usage and that being an alleged risk factor for his cognitive deficit and mr homans explained in the motion for a new trial and stay b s hearing that somebody on drugs committing this crime would not this dixie mafia who did that b i was coerced and went to mrs wilson's home i didn't stab her either i didn't kill her and they came a point where i just sort of black down i don't remember what happened and the two children were very badly assaulted with a knife but i don't know what happened i can't really tell you kind of like blacked out i thought their argument was that this mental health stuff plus the drug abuse provides an arguable explanation for what happened at that point  counsel's position would be that this type of evidence that mr franks counsel is now arguing with a road their original theory of residual doubt and it wouldn't amplify what mr franks is now trying to say  and that's because trial counsel specifically said that they yes there was drug usage involved but there was no argument that mr franks committed these crimes wall he was on drugs and your honor even mr robbins testified that the forensics didn't pan out with mr franks being on drugs committing these crimes and i think that's what mr franks is now saying that these crimes were committed in a drug fueled frenzy that was brought on by his alleged cognitive deficits and to go back to the state as court's reasoning of finding this week that's because dr grant specifically said yes he has difficulty planning but he can still plan to kill and he can still form the formulate the requisite intent excuse me for malice murder and as judge newsome said another factor that state took into consideration was that dr franks testified that this that someone committing perceive me as someone being under the influence of drugs was still able to distinguish between right and wrong and so the jurors would have heard that in the state his court took that into consideration in its finding of no prejudice as to a mr franks's alleged brain damage the stat found that evidence weak because on cross examination dr grant was confronted with mr franks his medical record and yes he had a car accident age eighteen but the primary injury was his back injury and the doctors had mr franks undergo treatment for which he received an e g d and a cat scan and both came out normal also ask  role revelations of his illnesses were not reconciled with his medical records which showed that he had a healthy birth he was eight pounds at birth his childhood medical records showed that he only had some coals he had whipping cough that too his testimony was not credible and it's a prejudice analysis because dr antin a pine that mr franks had committed these crimes in a drug fueled frenzy but that when he comes off the drugs  sort of cooling down period he returns to his hospital bill and courteous cell but again the stay hevia score found that that couldn't be reconciled with mr franks having held hostage an elderly couple well after the crimes against mrs wilson and her children were committed and when he held them hostage he held them there for at least five hours in a garage in august in alabama in the heat without water so your honors with respect to the prejudice analysis i would argue that that's precluded under the age of the state courts finding and then going back to deficient performance the status court found as fact that mr franks this trial counsel conducted their mitigation investigation along side their guilt phase investigation it wasn't something that was put to the side and that the goal investigation was something conducted in lieu of the mitigation investigation and that finding is supported by the facts in the record by trial counsel testifying that as soon as they met with mr franks this family and that was on september th i believe two thousand or one thousand and ninety four which was shortly after mr committal hearing mr robbins asked his fans their family all about his background they wanted to know information about his developmental history his mental health history and then when mr homans met with the family  met with them later because he was appointed to the case later he asked them as well about mr franks his background anybody who was influential with him and something i think is telling is that mrs mashburn in motion for new trial hearing testifies that they never discussed anything about his background and yet at that very same hearing she says that she was amazed that mr holmes is knowledge of mr franks's or excuse me yes of mr franks his background that he had a file mother's testimony where she explained his illnesses having to do with the absences and nd and rd grade and then in th grade when he was fourteen years old that's when they separated from mr francis father and he had to go  and start working to support the family which goes back to judge prior's point saying that counsel in their arguments to the jury as part of their theory of residual doubt explained to the jury that this was a person who was not violent this was outside of his character and so it supported their theory of residual doubt that he would have started working as a young child to support his family so i think your honour's with those two points in mind the status court's decision with respect to how much did they actually do when it came to exploring the record the school record your honor trial counsel testified that they reviewed the school records and that there was nothing remarkable that's all in the record with respect to what they did for the review of the school records how many times was he left sorry how many times was he left back  had he wasn't promoted in the nd grade and the rd grade and then he dropped out of school in the th grade and your honor i think it's also telling because the stay be a sexperts talk about the the family environment contributing to his cognitive deficits and calvin who was mr franks his brother he skipped two grades while he was in elementary school and his sister had also went to college so i think all of this put together  in front of the jurors this would not have led to a reasonable probability of a sense other than death and i think the state courts finding was reasonable and so if there are no further questions from me if you see the record with respect to the trial court's limitations on ex parte hearings that was something that was presented in this state be a score and in that hearing that had to do with investigators and it didn't have to do with mental health experts trial counsel and the trial court we're talking about what can be revealed to the state with respect to what they want for experts and also although dis particular part of the hearing was ex parte the trial court had the state come back in after that hearing was done and had trial counsel at the trial court's direction tell the state who their new investigator would be his background and the fees that would be provided to this new investigator so i think the status court found trial counsel reasoning for not for thinking that they would put the stay on alert about any mental health expert reasonable would it be easier i guess that sounded i don't mean to be disrespectful but that sounded like a car for me to follow said sorry i'm sure talk talk talk but i mean i guess would it be easier to say simply that their mother wouldn't have been prejudiced because we've seen what what sort of mental health evidence there is in the case and i'm not really sure it would have when i went to prejudice st but additionally a trial counsel testified that they found no basis for a mental health expert before mr franks this revelation met trial so your honour's in conclusion i would just argue that the state is court's reasoning for book no deficient performance as a trial counsel and no prejudice was reasonable therefore his the decision that  were not an effective should be affirmed thank you very much i just wanna dress up a few things that respondent counsel brought up she said that the judge listen you discussed the ex parte hearing yes there is an explicit finding in the supreme court of georgia the trial counsel made a mistake of law i developed a extensively in my briefing misting said that she thinks that the state habeas court found that that this was reasonable and i may be wrong i was looking through my notes very quickly but i don't believe there is a finding this issue in the state be a score i believe that the finding of the supreme court is that if that was an issue though of an ineffective assistance of appellate counsel right no those are supreme court made actually two distinct findings on a mistake of law one that pertains to appellate counsel and one that pertains to trial counsel appellate counsel's mistake of why was that they failed to present any evidence whatsoever in support of the nd prong of their strickland claim that trial counsel had performed efficiently at the penalty phase of mr franks this trial the supreme court of georgia made a separate finding that trial counsel had performed efficiently by making this mistake of law regarding mental health expert assistants so we have two distinct mistake of law findings and so then what though in response i guess to my  suggestion that the the more difficult piece for you is that there might not be prejudice with respect to that failure even if there was a mistake of law and it's unreasonable to misunderstand the law such that you don't know who are your own mental health expert with there or can we really say that there would have been prejudice because you know sort of knowing what we know about the mental health records may just not be that troubling so my position is that they're absolutely would have been prejudiced mr franks the evidence showed that he you know suffers from a substance abuse disorder and that he has brain damage and cognitive impairments that led to what happened during this crime response counsel suggested that there was no evidence that mr franks was on drugs at the time of the crime i do want to address that because that seems to have been given at the trial and mr wilson was found with methamphetamine and his system and it was his testimony that they had all been consuming drugs together during the crime so i don't think it's really disputable at that mr franks was on drugs and everybody in this case has taken the position for the last twenty five years or however long it's been that mr franks was on drugs at the time of the crime i want to address the parts of the problem that you have there is even if that's true mind to break into a home and basically lock up in a hot car on an elderly couple until the daughter comes and gives him the keys to the car which he uses to get away the suggestion is not made that he was on drugs the whole time i said no definitely not and i certainly don't dispute that those so we don't have any evidence about half life but he got a pretty long period of time here right from the time of the events yes the night before the homicide to the time of the apprehension his nine full days i don't that tend started to cut the the argument somewhat doesn't it that mr franks committed these crimes in a you know a drug fueled frenzy that exacerbating has exacerbated his existing cognitive impairment i think that there is a significant qualitative difference between  do think that one juror would have found the evidence of mr prince's substance abuse disorder that resulted from trauma and genetics and is talking to the parents to be mitigating certainly there was aggravating evidence presented by the state in this case but this court and supreme court have found that psychiatric meds mitigating evidence undermines aggravating factors in some cases and perhaps that have happened here also as to the point that the evidence that was presented at sta s would have been or cumulative or was cumulative i do want to address that there was no evidence presented of cognitive impairments at the trial there was no evidence presented of a substance abuse disorder at the trial there was an extremely limited amount of evidence from david's brother that he said and i quote our childhood was not exactly a rose one and testified that their father was abusive and had once  largely cumulative the nature because that was really just one incident of abuse that he described but the mother said describe two instances once the father jumped off the defendant and once the father does test testified to was thick nikken i'm out of emotional abuse and what david brother referred to in his testimony as domestic terrorism on the part of david's father none of that was presented and as i said none of the substance abuse evidence was presented none of the brain damage evidence was presented there's a significant amount of evidence that did not come out at trial saying their childhood is not exactly a rose one and that his father shot at them on the couch once came nowhere close to the evidence that came about and state a v s and this court has repeatedly found that even when new medicating evidence echoes other mitigating evidence or duplicate it that providing specific experienced said my own experience is that using sort of his drugged up defense is not likely to be very successful with this jury in this community my own judgment is in the face of horrific murders and attacks that's not the way to go short so strategically my own view the lawyer says when i was better off with he didn't do it and even if you found out he did do it you've got to have some abiding doubt about that and so residual doubt struck me as tactically a wiser way to proceed why would mr homans had experience and the penalty phase of a capital trial so i i would like to know thought at the outset they may have had some experience with criminal cases but neither one of them had ever defended the penalty phase of a capital trial which the supreme court said specifically note in porter and finding porter's counsel ineffective i don't think they were in a position to know what a capital jury and hall county would have found mitigating because they had never been in front of a capital jury and hall county and i think that counsel's testimony on this point is a little bit problematic because counsel in fact testified the jury that the the judge credited that the trial the state a b s judge credited that testimony it was that what do we do with that we certainly have to defer to to some extent to what the state a be struck found counsel testified that this jury that the jurors in this phonier had said that they didn't want to hear a sob story that didn't happen as i've addressed in my briefing there is no area in the border in this case where any juror said i do not want to hear sob story in fact the only jur to address that specific point said that they would be willing to consider a sob story so counsel's credibility is very very much in question on this issue i thought robinson who had been involved in one death office right but he had he had experience defending a death case that went through in the client was acquitted and he testified that he had delegated the responsibility for conducting the medication investigation to his co counsel on that case so we know that he didn't prepare for the sentencing proceeding mr robbins had never tried a capital case in front of a jury he had been involved and that i think he was conflicted out of the case that he had been involved in at some point long before it went to trial and i believe he was involved in another case that pla