by when you're ready mr hawkins will hear from you  another sort of procedural question if we were to agree with you you on the lesser included often said manslaughter but disagree with you on a sudden passion would be in fact be a reason a reset a new sentencing no i know that but i just want to i like to know lawyers tend to argue all or nothing and i'm like what if there's a middle ground i want to be sure i understand the outcome they get all levels i'd like to explain both the performance and the president's problems  instruction is to carry double edged consequences in this case is i think a perfect illustration of why that's true the record shows that even before he was arrested me he claimed that he acted in self defense on the basis that had accepted that self defense theory the result would have been a full acquittal now under those circumstances it was entirely reasonable for alex little to forego the lesser included offense instruction of manslaughter in order to avoid moreover the jury could have found manslaughter inconsistent with me he is a poor self defense theory and held that against me here in the morris case that we discussed on page twenty one of our brief notes the tension between seem what i did was instructions we have not contested that we're simply saying that it was reasonable not to do this right and going in your view is it is this is i think i think your argument is this is not a case where the defense attorney was under a misapprehension about whether he you don't have a jury full of lawyers and so this notion that something could be legally consistent to say well you intended to do it man you plan to do or you're going to do it and maybe you just kind of messed up and it while legally you can say that can be perfectly reasonable and i think this case bears out exactly what brewery was talking about i'd like to turn over to the sudden passion instruction asking you know why is that all or nothing tell me about why couldn't that be consistent where the evidence well your honor i think it might not have been easy might not have been consistent with the evidence because the evidence in this case showed that me he deliberately armed himself with a self defense or he was trying to get a jump on the guy and just get rid of the guy i don't think there was any test we were going to raise your arm here is court testimony was that he was really not that he was in he indicated that he wanted to try to protect his on your spouse had having sex with somebody else or something like that and you intended to kill them but it was because of this rage that came upon you with this encounter  afraid of defending himself whatever so now you're trying to lessen you know the end of the outcome make it is as short a sense as possible what is inconsistent about arguing said passion at that i have this in my hand and this will get me a problem ten years off my client sentence and there's no reason not to use it and i don't use it best and pretty darn competent sounds like a good idea there is some problem like if i use it in something else could happen over here and you could end up with ten years more then then strategics and that's my question if there is no if you will end it in asserting this sudden passion then it's not double edged it's  because maybe it gets here client fewer years if there's a harm and it there is something we're it will undercut some other argument moving yes file means it's strategic and and we don't get to debate the strategy i mean i guess i'm having trouble with the notion that we can analyze the lawyers determination at all because we don't even know they made a determination right well your honor he did it  that me he had not shown an objective fear for his life that would justify self defense but that's what we know about the jury thought it's reasonable to think that maybe the jury thought that we he had a subjective fear for his life  his mind justified self defense no that's not an objective basis that gets you off the hook for murray as a matter of law but it's possible that the jury could have wanted to show some mercy to show some leniency because he subjectively feared for his let me try again because i didn't feel like we're commuting the whole theory here is that he made a strategic call because he didn't want to argue inconsistent and all i'm trying to find out is what is inconsistent about said passion that's all i'm asking and not getting any answers please could you answer that i just gave i don't know what to say other than what i indicated earlier that sudden passion is inconsistent with the facts of the case with the fact a few army who saw him go into a fight that is not what sudden passions about that's  consistency i think a jury could look at that and say that story but that's not what his lawyers are going for you're going to get what the arms up going to the bike he's arguing that the guy was afraid and all that what is inconsistent with being afraid what is inconsistent issue your honor i think it's important to note that this jury threw the book at me yet they literally gave him the sternest possible sentence under the law life sentence according to this jury was not adequate so they tacked on a ten thousand dollar fine issue that this jury was obviously outraged by his conduct and wanted to show him the full force of the law against that record i think it's very unlikely to conclude that the jury was looking for some intermediate ground or some if you don't mind starting with those two sort of what i call front points which is why is it true that if we agree only in part with what judge atlas did agree with sudden passion just didn't want to rehear with sewing in this case i mean a great big buddha said you know this is a tough case and i don't sympathize with what happened so i'm going to give them fifteen years going to give them there was i mean who wouldn't be here if you will of course he would counsel made that argument he made all the arguments up for mitigation that you're making now he just didn't he didn't have that instruction but but he and i mean that arguably makes a difference because maybe they are mad at him that they think he was a victim sent but they don't realize agreeing with what they're doing when they say yes and then he gets the cap later they find why and he caps it in twenty years i mean in this state or that or just but it would do good to think of it from the other side which i think we have to do which is good the state court might have said well sure i understand now but the jury might have also said he armed himself with a knife and that i would like a leisure council opposite knows the answer i would like an answer to the question of whether the jury has simply been asked was he the victim said passion defined as so forth yes or no with the jury have been told that  offense but i'm sure there's an answer somewhere included is kind of the less likely it's more likely he meant the all or nothing because there's a lot of i mean look i watched state court trials great years as a judge and there were a lot of times when they you know you could ask a  and they tried to argue both and it was just painful for them to try to have it both ways and then i had to submit the jury questions that way but it may have resulted in a flame out for them you know so i can see how you you might know you have a legal right to do something but you just think i don't know how the heck i can get up and argue to office it is that so if that's a possibility or one option then we have to go with the option the state court pick which is that he the law the state court construed it as all or nothing strategy why can't why are we not required to give deference to that construction of what the lawyer said if the lawyer said i did not know the law ma what makes us say he had to request the same passion in order to be competent really did know what he did that you didn't know he had that option but instruction if what if it is affidavit if what he's saying is true that look everything hinges on self defense there was no provocation from the defendant and when i got to the point when i got to the penalty phase my strategy was it how do you what it isn't it part of his strategy nerve to then inject this issue of sudden passion this sort of money is all that i guess is what the other side he goes to the bar and walks over to the bar there was no such affidavit introduced by the prosecutor issue you know that answer what is the jury told on sudden passion or are they told it will cap it better if they just asked hey what you're saying passion yes or no are they told the effect of the answer i'm afraid i don't know the answer just change it's not a record seven in the record and they do list one of the lists that the penalty is life with a ten thousand dollar fine but because they have to award a a verdict within that rage that's what i'm saying is  effectively and so they might be asked a seemingly innocent question when did this happen or something that's going to trigger a statue of limitations defense but they're not told that they're asked all these other questions about damages and all this stuff becomes irrelevant and they're not told them so that's why i think it is possible that they're simply asked straight up was a recent passion which is defined as follows yes or no and not told anything about the range they're just given the five to live i think him the thing and then it becomes a cap on but i don't know that's what i don't know and i i don't know that i don't know that it's case determinative but i'd like to know the answer unless he gets no and this was why i didn't remember it the way you said what no says is there is not a bright line rule that says any time you can prove that the lawyer had nothing to lose he's incompetent by not doing something they just said they said that is subsumed under the regular strickland analysis so it's not that nothing to lose is irrelevant it's that it's not a separate independent bright line rule it's well now they didn't violate it simply by so why not applying a bright line nothing to lose however it still can be that the lawyer was incompetent in part because in knows the issue was some sort of insanity defense or whatever i'm reading it quickly obviously because i'm sitting up here you know look at those before but anyway looking at it quickly but you know again there's a strategy and so on so forth i think when we're arguing this whole double so wasn't it relevant that he had nothing to lose yes i think that when you're evaluating the worst performance it's important to look at all of the factors in the record and when we're at valuating whether it's on reasonable to have found him to have acted competently isn't that still part of the elsa's i think that's fair judge means i think that's right but i think even setting all that aside there's ample basis to reverse as to the sudden passion issue first when we look at what luna actually did do i think it's important to review his sentencing summation this is a pages ten fifty seven three ten sixty two of the record he reminded the jury that every case is different he explicitly emphasized the discretion   in the law and advised the jury that they could pick any sentence between five years and ninety nine years he reminded the jury of their duty to consider the full range of options he talked about the context of the fight he argued that he is background was relatively clean his criminal background he explained that me he had committed the stabbing while trying to run away he said there was no initial aggression by and he emphasized that he had cooperated with the police now in light of all that he asked the jury to show leniency to show sentence of ten to twenty years that was the strategy that he pursued and i think that strategy is eminently reasonable he thought in his professional judgment that was the best way to get a better sentence it didn't work as we know the jury threw the book at me here but that doesn't that sort of post hoc post or ex post analysis is not relevant to the strategic question x and t going into the sentencing phase now but it is relevant to prejudice exactly and i think there is no are prejudiced in this case the appointment and of course mr hawkins we appreciate your service as well thank you to both of you the case is submitted and that concludes all of th