testified that roberson and his father fought like adults in the yard when roberson was ten but presented nothing of the evidence of abuse that we presented state a b s in which petitioner was beaten savagely when he was four when it was sponsored in addition the jury heard nothing in this case of edition as extreme mental illness and emotional disturbance which was directly related to the bizarre and frankly grotesque inferred about the fact that despite the deprivations that he had experienced and despite the clear troubles that hat there were other son had there were family members there were neighbors there were teachers there were friends who would have come to the court at sentencing and presented a reason why mr rollins life should be spared instead counsel presented nothing at sentencing not even a single witness and those facts that identify did not that is correct your honor that is exactly what grant said and what i'm saying is it is materially it was interesting the guilt phase wrote it was during the guilt faison that's not the critical fact the critical difference is it is one thing to describe a ten year old boy fighting with his father like an adult fist fights in the yard that is not a four year old infant being beaten savagely with a belt with a switch by his father being beaten by his mother to the point where he's finally left to hide under the porch in isolation that is very different i would urge the court to go to the record in this case it is the appendix page one forty five in just look at what dr grant was asked in look at what he testified and if the court would indulge me i'll just read it's really it's one paragraph the question came now going back to your investigation can you tell us can you give us some background and give the jury some background as to what you've discovered about m family life as he grew up and again this is in the guilt phase and dr grant says this well he comes from a very well if you'll pardon the expression dysfunctional family from a very early age you know especially after the head injury he never seemed to fit into the family he and his father would often get into arguments his father appeared to be an abusive father he drank he would not spank mr rollo hsan he would hit him in the head often with his fists his mother described when he was ten years old his father at the age of ten and it continued he and his father would actually get in the yard and fist fight just like adults that's a ten year old boy who is basically the equivalent of an adult he's fighting with this pother man to man that is not the kind of abuse that was presented in state habeas through rollason sister through his neighbor through his older cousin and so the jury heard nothing of that and in a case like this where the state not only had evidence of extremely serious crimes which we obviously acknowledge and the the and prosecution presented additional evidence of aggravation in the form of assaults on his mother assaults on his sister and other incidents the the tide was overwhelming in terms of the aggravation that was presented and in response at sentencing there was nothing not a single witness and the reason for that and the reason why it was not a reasonable strategic decision is the evidence shows the council did not conduct a mitigation investigation he put all of his eggs he put all of his eggs in a single defense and that was a guilt phase defense the defense of mental retardation he did not investigate a mitigation case and when the jury rejected mental retardation he had nothing he presented nothing and i submit this is truly the exceptional extreme case of ineffective so i know the court hears many of these cases and every case turns on its own facts but i submit it is extraordinarily rare for the court to hear a case or at sentencing not a single witness was called not a single record was presented where counsel argued basically in ten pages of transcript said virtually nothing about the defendant and pleaded for mercy from the bible that is not consistent with the defense counsel's duties as set forth in and wiggins and strickland and other critical cases the decision in wigan's came down before the state habeas court decision the state habeas court didn't even cite wigan's in its decision and for those reasons i submit that that the state is wrong in arguing that that this mitigation information came out in guilt and therefore it didn't need to be presented again it sentencing and therefore there is no ineffectiveness here if you look at the record if you look at the materials that we've set forth the material facts were not presented at at mitigation at that guilt what's critical and i am for size this dr graham was a witness on mental retardation therefore it is in this court now as for many cases the key is not just to focus on i q but you also have to show deficits in adaptive functioning so one of dr grant's principal purposes was to show that roberson didn't fit so in the in the in the paragraph that i read the point was he didn't fit with his own family he argued with his father he art he fought with the spotter the same thing at school grant emphasized here was someone who didn't fit it's cool he tricked us teachers he was aggressive he was assaultive he didn't fit so grant is not a mitigation witness he is not trying to present the jury a reason to spare raul or son's life which is the purpose of the sentencing hearing grant was to show that this person qualified as mentally retarded he didn't fit at home he didn't fit in school he didn't fit anywhere to flounce guilty and if he were found to be that it is true and i will not deny the counsel presented a defense of mental retardation if that had been effective rollers and would not have been eligible for the death penalty and counsel recognize from the very beginning there was only one issue in this case and that was life or death there was no defense to the merits he didn't present a defense to the merits there was no dispute there was d n a evidence there was evidence that was found it was a grotesque bizarre crime a conviction for necrophilia evidence that the defendant told the police that he went back to the scene the next day apparently to have sex and three people were killed it was not a single martyr or a double murder it was a trouble it was a triple murder as cooper was your honor another case of this court in two thousand and eleven i would like to separate your claim about investigation from presentation by counsel that is the decision made not to present what they did discover and i'm not just isolate and best to geisha because that is another client is that correct is correct and ok i believe both are present and i and sam but i want to make sure i understand the investigation climb but because if the vest a geisha and was adequate within constitutional bound that's one thing and then we go to the next issue but if the investigation itself was inadequate then you know have to go to the next issue necessarily i want to make sure i understand the record the counsel hard five different experts is that correct to insist before trial and that is missing i'm not a license conical social worker is that correct yes your honor and ok i'm just trying to make worker here looked like to me was doing mitigation development am i wrong about that there's you yes you are you're saying it was all mental retardation in the social history that was done by the social sumner as you can see from the materials or in the record in the supplemental appendix she was employed by dr sydney no she was not engaged by counsel to do a mitigation investigation counsel was offered the services  specialist and he rejected those services have a let's talk about what actually did happen i'm just trying to see what counsel ted it's extend that i can decide for help decide that will help me decide whether that was ineffective and she interviewed the mother of the father of a call to ankles is that correct ms sumner i believe she only interviewed the mother in two uncles ok and that appears in the supplemental appendix serino so just if i can address the record as i don't want to do i don't want to dispute what was done obviously counsel hostile to whatever purpose it was done it was done so i don't understand whether what the purpose has to do with that it's if you find out information you find out information however of whatever purpose my point is that information there's nothing in the record that that information was ever used by counsel again d think i will accept that perhaps he did i don't know if it's in the record one way or the other doctor savina is very important your honor and if i could address dr sabina he was hired to explore a defense of insanity and in fact at one point in this trial the defense filed a notice of an intent to raise a defense of insanity and the other experts that you have identified were done to explore and organic i've been trying to find out how much of the personal social history of the defendant was investigated and discovered then i can go to presentation if you don't want to focus on that that's fine but i want to focus on it and so i want to make sure i understand that miss some nor did interview certain people and it looks like she got a lot of records so somebody got medical records because we have cases where they never get social history they don't get medical records they don't get anything and i'm trying to see what they have attained here those records were obtained from where county hospital from various sources i don't dispute that your honor again all of that information and there were extensive school records about his schooling from the where can it all the school records school system records or tank is that correct there were some school records not the record that we've identified where roberson goes through questions and identifies at age eleven that the best thing that could happen to him is to die that record was not identified was not presented that information was gathered by dr grant to support the claim that roberson didn't just relay arguing and i'm just trying to go to facts and i now understand they understood they learned that he had had a prior suicide attempt is that correct yes or i mean an actual it was in the record it was not investigated by council for british council say he didn't know about it at the hearing today and never knew about all that i thought he said i knew all of that and i decided not to present well hatfield the younger lawyer was in charge of the mental retardation defense and he testified i don't dispute all of that information that you're referring to that's in the state's brief that is listed it was obtained ok so you  state's brief about what information they did discover but when you say they i think that's a whoever somebody's got it somebody's got that information as presented and you're saying the state had the burden to show that the lawyer i reviewed it as opposed to your show i'm a lawyer i didn't ever know about it no i'm not saying it's the state's burden i am simply saying that information was gathered largely to support dr grant and his effort to show metal that i'm actually trying to help you with really rather this case is about presentation versus investigation sounds like you think it's as much about investigation as presentational is i think it is both because of the thirty three witnesses who we submitted affidavits at state habeas every one of them said that they were never contacted by counsel they never were approached about the possibility of we understand that but we have cases where have far less you to compare this case with ledford which is a case of just last last year of this court i wrote it sonds moment when that but i think it's a useful because there were various parallels so as you recall from ledford again there was information presented at the guilt phase because again in that case there was an effort to show involuntary intoxication as a guilt defense and you noted that there was significant mitigation presented you noted that there was a mitigation investigation done an effort to develop evidence for sentencing and in fact it was presented it sensing through one witness the mother who was so good the counsel then made a strategic decision we had a lawyer here who had done a bunch of several capital a death i believe that is true your honor i don't dispute that he had fifty years of experience in i don't dispute that he had never lost a capital case but it is what i do submit is the record in this case will show that he made no ask you to address the issue concerning the beyond the reasonable doubt standard certainly your honor again i don't want to detract you from the other argument too but i'd like to at least hear something about that contention while you're up here yes i want to say of course i am well aware that this court not only this panel but the court on bonk has obviously addressed the burden of proof issue at great length in multiple cases most significantly in hill versus home for your country versus hell what i want to emphasize about that issue is three things first this court although it addressed the burden of proof issue that expressly recognized in humphrey versus hill that the court was not addressing the due process issue because it wasn't presented in that case it hadn't been raised it wasn't part of the question that the court asked to be addressed it was not part of the case and so the court expressly recognized that the the d process issue was not before it secondly obviously a critical issue in all of these cases is the effect of at and what the standard to review is under at and i think what this court emphasized most critically in the hill case was that applied and so the issue was whether or not it was clearly established at the time that georgia courts ruled that the burden of proof was inconsistent with that kids in this case we  raised on direct appeal but thirdly even was a state issue really wasn't on direct appeal but it was and that's why the court erred i mean so the federal issue really was raised on state t v yes it did seem to me  is what we argue was not a decision that was properly barred because undirected at the time of mr olson to direct appeal atkins had not been decided so he could not raise the claim that the burden of proof beyond a reasonable doubt is inconsistent with the fundamental right recognized americans in the leland case the supreme court recognized that a state created rights such as an insanity defense which is merely a state created right is not subject to the totally agree with you as a state clime he didn't have a federal crime he didn't need a federal crime because he had a state statutory climbing to the right he didn't need a federal crime he raised a federal crime and the state and the question we have here is whether or not we have a ruling on the merits of the federal kline in the state crime and the state collateral proceedings in the second paragraph of the opinion even though there is a heading rice judicata help me with that two reasons first the state argued court that the attorney general that this claim was barred by race judicata and significantly the second point they made was that adkins did not create in the exception to race jud applied and therefore the issue was precluded and as a result i believe the fairest reading of the state court decision is that the court did not make a decision on the merits but found that race  applied there was no exception to race to dakota and the issue was precluded and that was air because that claim could not have been raised on direct appeal secondly the a g argued even below and the district court that this claim was barred by race due to cut it did not contend that there had been a ruling on the merits and so i submit for that reason this court should review it and let me also just state that as to the due process claim even if you review it under  would submit that the decision of the georgia courts in upholding the burden of proof is in fact inconsistent with clearly established law and in atkins for this reason the georgia supreme court in head versus hill recognized that the burden of proof served a function to narrow those who were eligible for the defense the words of the court were that the burden was permissible because it limits the exemption to the those whose mental deficiencies are significant enough to be provable beyond a reasonable doubt and i submit that's inconsistent with kins which holds that even the mildly mentally retarded cannot be questions we thank you for your argument and we will hear from the state th obviously does contend that that is a ruling on the merits by the state court if the court is not to inclined to find that the georgia supreme court's decision as it was a state right it was not a federal right at that time not to be eligible for the death penalty if you intellectually disabled if the court finds that was not a ruling on the merits of the status court did rule on the merits however as also mentioned in our brief the claim was not raised in the c p c application to the georgia supreme court so no this court's recent statement in the order which says this court denies petitioners claim that the united states supreme court's decision in actions versus virginia declared this burden of proof of mental retardation unconstitutional and then it says it is bound by the rate recent decision of head versus hill which clearly evaluated the burden of proof under the fourteenth and the eighth amendment so it is our interesting that is a decision on the merits understanding your exhaustion and other arguments can we talk why do you think and let's do it at two levels so first let's do it out of the noble level and then we'll talk about it but deference so my first question put side by deference to the side for just a moment tell me why you think a beyond the reasonable doubt standard for establishing mental disability is constitutional under the due process cla well i would refer that to what the georgia supreme court stated in head versus hill that this claim is very similar to a claim of insanity and that when they looked at that under leland versus oregon and when they did look at  they obviously they looked to see what the other states did but then they looked at the rules in the laws that complemented what the definit had to raise in order to prove insanity and as the score and not stated very well and i  hill versus humphrey and it lays out all of the different benefits that if it has in georgia when they raise a claim of intellectual disability they can get whatever experts they want they can present as however much they want during the guilt phase of trial they can raise it on direct appeal they can also presume it intellectual disability in the sentencing phase under no standard at all that has nothing to do with the burden of proof but it does under legal and versus oregon it says that you look at the entire system when you're looking at the due process clause even under the due process costs as you look at everything you don't just look at the burden of proof well but you know it in a slightly related not identical mental health scenario the supreme court has held that a state cannot place a clear and convincing burden on someone trying to establish lack of competency true and why do you think that's  different from again we're talking to novo will talk at by a second ok because i think those are different questions but why do you think that is materially different than proving mental disability well i do think that inco is materially different then an affirmative defense of guilty but intellectually disabled and it's not just but it's not just guilty but mentally disabled it's also a constitutional protection against execution even if you're guilty by ana and i understand right that was created in the federal right and the federal ram only sixteen years ago and that is integral to cooper versus oklahoma you have to look at it and if that is something that has been around for a long time and if you also look at georgia was the first state that enact a statute that says that you should not execute the intellectually disabled and they were the first ones to come forward that and they were first ones to set that burden of proof and when you look at cooper versus oklahoma it looks at what that burden of proof was two hundred years ago when they were looking at their jurisprudence or maybe my years on there but they say you know the clear and convincing standard was never the standard back then but yet here the first state to come out and say we would not execute intellectually disabled we chose beyond a reasonable doubt and i don't know how you separate that out from cooper and then just take pick a specific language to say that our state or to be honest the supreme court own you can correct me if i'm wrong but again talking to novo the supreme court has never upheld a beyond a reasonable doubt or clear and convincing standard for the demonstration of something that is constitutionally based and my writing wrong are wrong about that i would say that you're about that ok well then again at that the noble level of analysis and i speak only for myself not for my colleagues that i think creates a problem let me ask one more question on that the noble front and then will will move to since the discovery took place back in what two thousand and eight two thousand and nine pursuant to the discovery that judge a lime allowed but yes right has anybody in a capital setting been able to demonstrate to your knowledge mental disability beyond a reasonable doubt in georgia there actually were several cases that were elicited hill versus humphrey i don't know since two thousand and eight was one there was a judge hall's opinion for the court listed one case beyond two thousand and eight it was one two thousand and ten case some aware of that one of course so my question is whether you know if you don't know it's fair enough to say you don't know i'm asking whether since then there has been any capital defendant who has been able to establish mental disability beyond a reasonable doubt in ga i'm trying to update the discovery if i if i can show her i did actually look that up i cannot tell you that it was before two thousand and eight that those particular cases and i don't have them in front of me i'm happy to file supplemental on that but i can say that just saying that there isn't enough to report it opinion five being that they were able to prove their intellectual disability beyond a reasonable doubt doesn't take  the cases in which they didn't go to trial or in which they didn't receive the death penalty and they did not appeal so i mean that would require a much larger review than just what has been reported well reported or no reported your office you may not know but your office may know what that universe of cases was and what the winnowing process well actually for that writer no we don't keep track of that judge  gordon i know that we did have one case that was sent back a stripling and i but i do not recall if they pled that out or not i think they did in that was all intellectual disability but i don't think that we don't we don't keep a record of which cases go to trial and they don't it only comes to our office once there's been no so appeal basically filed in the in the georgia supreme court fair enough so so as we stand here you don't know what the numbers may or may not be post two thousand and eight no j short ok fair enough ok i want to monopolize the conversation but i'll keep going with with that with that but then tell me how you think ed but helps you with regards to that issue well exactly the same way this enunciated in hill versus humphrey there is no clearly established federal precedent that states that georgia's burden of proof or intellectual disability claims is unconstitutional and as this core an unstated so well again it laid out exactly what it means to be clearly established it must be in the holdings it can't be in the dicta and there is no there is no case in the u s supreme court directly on point on this issue but a close this would be cooper but again cooper deals with a fundamental right that has been around for a long it is different just right just what do you do about cases like pinetti which did not have a prior decision as they say on all fours but nevertheless reverses and granted least partial a b s relief through the enunciation of something that might be regarded as somewhat new or new or well i do not see pernetti is that way  why we're finding that you have violated supreme court law but it wasn't just a hearing those a little bit more about what that hearing has to involve well true i think that but at the end it was about the fact that ford had given them a right to a hearing and that's i mean i think that distinguishes it on its face ok one last question then if no capital defendant has ever been able to establish mental disability beyond a reasonable doubt before a jury or before a state a b as court would that change your argument in any way either a on of the novo level or under and but deference don't think that would change or argument would that would it matter then how long the period of time was to calculate the statistics in other words and i'm going to give you a set of numbers that don't apply here i don't have to do major calculations here you know no i wasn't good at math either so if you had a period of fifty years in which no one was able to satisfy a certain burden of proof would that be a relevant consideration for a court trying to figure out whether that burden of proof was constitutional or not under the paper i think that that would be a consideration it may not be dispositive but it would certainly be a consideration ok thank you ok unless the court has any other questions regarding our burden of proof i will go to the ineffective assistance of counsel claim judge toler you asked regarding the investigation done by trial counsel i think our brief sets it out trial counsel did our well when i say they hired five experts i do agree with my opposing counsel that misdemeanor was part of dr sabina's team but in that record done tell us whether or not the lawyer even reviewed what miss sumner came up with or doctors having those reports what do you say about that well first of all i don't think he could benefit from a silent record those those records were found in trial counsel's files so it must be assumed that they did look at it and mr hatfield who testified here in the state he is hearing said he knew all of this information almost all of the information there were some things in the affidavits he said that he was unaware of but he didn't specify so judge paul i reviewed that record this past week and i do believe i saw that in their files so they had all of the information from their own experts they had all they spoke with fisher's mother and father they spoke with his two uncles and i do believe they spoke with his sister obviously the affidavits say that you know they don't speak with you know no one spoke with us they didn't talk to us about this that's not uncommon in these cases obviously i would say that the this case is very much like bobby versus van hook where in very similar they had mental health experts they spoke to the closest family members counsel counsel came along and they had many affidavits from extended family and friends saying oh we could have told you so much more but in this particular case they had all of the relevant information they  needed and then they made strategic decisions mr hatfill was very clear about that they made strategic decisions not to present the family members in the senate seat face and not to pursue mental health any further they felt that they were aggravating information in both of those from his family and in the mental health and if you look at the central state file there is aggravating information in there he was diagnosed as anti social by two of the i think it is dr tirith gall and dr anita ray smith so there was aggravating information and they made a strategic decision as mr hatfill said you know another person could have decided to present this differently but we specifically chose not to present this information in the sentencing phase of trial they felt they had gotten it out  grant and they even mr wilson even referenced it in his closing arguments in saying to say that they didn't consider that this information they didn't consider doing a mitigation investigation and to say that dr grant was solely focused on mental retardation or intellectual disability and that would be at i think it inaccurate reading of his very own report which has him diagnosed with antisocial personality features it has an diagnosed with probably substance abuse if he was just looking at that then that seems very unusual some of the reasons that counsel gave model but some of the reasons that counsel gave the post conviction hearing for not putting on certain family basement a geisha testimony was a fear that some other bad or negative evidence would come out but some of that was brought up by the state in trying to establish other aggravating circumstances rights of some of that was already there there was no way of avoiding it  it's you know he said absolutely some of that information came out but they did not want more information they did not want his mother on the stand saying that he had started beating her since the age of fifteen this was when his brother testified during the face that was an isolated incident where he allegedly pushed his mother down and he punched his sister and they got into a fight if trial counsel had put up his closest family members they were seeing this had been a pattern a practice for years that petitioner had been involved in they had been beating his mother his father his sister and there was also the and he also been beating up his brother as well so that that there's one thing to say that yes they had some information for him that he got to a fight with his family but i think the way that mr hatfill described it it's another thing for them to get up and give much more testimony regarding that that information that answer yes thank you so looking at this record as a whole and again looking at it through twenty to fifty four now that you can say that there's no reasonable basis for the state hey be a score or the georgia supreme court denying the c p c in this particular case it's not an extraordinary case of if this is this choices they knew that there was aggravating information in there and they were afraid that would come out and that is entirely reasonable there's one thing for them to present to me but to what was aggravating the diagnosis of the antisocial personality disorder in several of the dr subpoenas are poor is rather cursory but mr hatfill stated that they talked with him and that he had aggravating information and they felt if they put him on the stand that other aggravating information to come out and a lot i think some of that had to do with him being his family but also i do believe dr sabina report talks about and i could be mixing it up with dr sabina it talks about the fact that he was she was obsessed with his ex wife and he was very angry with her and really he that we want to take out all as frustration and that he wanted to beat her he wanted to get her and to hear you know i mean  they felt that that could be accurate and the only reason that i remembered something that he had beat his mother at some point was that and they are not true no that's true she did report that he had been beating her since age fifteen i believe she reported that to stated you know truckee also did a thorough investigation there was aggravating information in there maybe someone else would have tried the case a different way but petitioner was twenty four years old when he committed this crime he was not i mean according to the record here he had been abusing every member of his family since he was fifteen years old it for you know them to put out them and say oh well you know yes he was abused as a kid and now he's been abusing us i think a reasonable person a reasonable trial attorney could have started that was a bad bad strategy to get with and that's what we're looking at reasonable because you do work in that trying to general's office and handle these cases i'm curious how many times and i do not that admin more than twice that i know in the hill case they had tried to go up straight up or maybe another case i don't know it was at least twice i thought it was more than that they had to do you know how many you don't know how many times i  thought it was at least four cases but again i got it right that they had this burden of proof issue where they were not successful at trial and then on direct appeal the georgia supreme court follows its precedent and then they try before the collateral review they try to go get a search granted on that issue that's that's i'm just trying to make sure i remembered this correctly yes i do think there was think there was one on direct review from direct appeal and there were others wrong then it's for you to tell us and they denied sir that particular time unless the court has any more questions i would just ask your firm the decision of the district court thank you very much  even if you view this not as an investigation case but as a presentation case i submit this case is extreme not a single witness was presented and the only thing the state says is this is a reasonable strategic call because if if witnesses been called that sentencing would not a single witness was presented not one that that harmful information would have come out this was a case in which all of that harmful information was already out there was already evidence in the record that the petitioner had assaulted his mother his brother that's all the more reason why there needed to be evidence in that initial phase did they have that now the state put that on an aggravation that was a in the senate thing absolutely and that's what and there was no cross examination of that evidence that's all the more reason why you need a mitigation case to call the the family members the neighbors to explain to put in context to show that these events were not just events of some creature who started out mean and only got meaner this is why the evidence of abuse when he is four years old is so critical this is not some one way street of some some anti social vile individual who simply assaults everyone in his path this is someone who started out at age four years old getting beaten brutally by his father beaten by his mother this is the environment in which he was raised none of that was presented nothing all you have is the state pouring on pouring on aggravation evidence and counsel doing nothing that is not effective assistance of counsel the second thing is turn to the mental illness this is a case that cried out that there was something seriously wrong with the defendant there was a conviction for necrophilia which the defendant had admitted to the police he had given other information about the bizarre aspects of this christ case counsel hired dr serino in dr silvino in his report which yes is in counsel's files concluded and this is in a supplemental appendix and i quote mr rollason sense of detachment and disturb a sense of what is normal in human relations leaves a feeling of talking to someone who is here but who is not here it is my psychiatric opinion that mr rollason is both mentally ill and mentally retarded per georgia code seven hundred seven thirty one this is savina this is before trial counsel has evidence this man is mentally ill he obviously is mentally ill none of that is presented at trial of guilt innocence at sentencing so you have the state saying this is a creature someone who started out mean and only got meaner this is a man who's mentally ill but there's none of that presented in this case so of course the jury had only one picture and that is not to clients dr grant did not testify one bit about mental illness only imagine only mental retardation lee mental retardation it was in his report and his report did not go to the jury and that we provided the cites for that in our brief the report itself was not sent to the jury so there was nothing in this case about mental illness  that is mental and illness would have included being antisocial it may have your honor but my goodness can you look at this record and not say that there is evidence that this person has an antisocial behavior all the evidence th grant put in he was assaulted but he got a lot of presidents about that though you don't have a case like this when we have a lot of precedents though about the significance of an anti social personality disorder sure of course of course it's aggravating effect of course but again in this case you've got three murders you've got a record where the defense own one witness dr grant testified here's a person who was assaulted been his he he didn't threaten his family he got fights with this by there he was assaulted at school all of that was there the problems of billy rollason including his assault of behavior was there with this case cried out for is why why is this man so assaulted why is he so antisocial and it's because he was beaten as a child he was mentally ill there was an explanation at least a case to be made and counsel said nothing when the time came at sentencing to hear if there was any reason why this man should live counsel rested presented nothing then in closing argument disavowed the only defense he had he said you found he's not mentally retarded so we can take that off the table if this is effective assistance of counsel in a capital case sure you've got bad facts i don't deny that but there's a case to be made and that's what we presented in state hate because you can't look at those affidavits thirty three of them and this is a small town these are not people who are across the country they were cross the street they were down the road these were neighbors these were family members you can't look at those thirty three affidavits and say there wasn't a mitigation case to presented here there was such a case council didn't know what he didn't talk to these people he never talked to the sister there's nothing in the room to talk to the sister he didn't know that mitigation case was there he couldn't make a strategic decision not to present it and he presented nothing and under the clear precedents  and in your representation they really are excellent praise there and they reflect a tremendous amount of time and of course we thank the state for its work too but particularly we know how much time and effort and expense