two juries considered whether david really should live or die the first one couldn't come to a decision the second one asked if there was psychological evidence when told there was not after another hour and fifteen minutes of fundamentally the question that the second jury was asking was why did this crime happen she released counsel had not prepared a mental health expert had not presented a mental health expert so her present patient to the jury had raised this question but had not answered it so the question from the jury helps to demonstrate deficient performance as well as prejudiced it was clear to this lady jury that an expert was needed  expert and from my reading of that the record in front of us what this lawyer concentrated on was trying to duplicate the success of that first time she went and interviewed all of the jurors and didn't ignore the possibility of a mental health defense did consult with it looked at the records and consulted with a mental health expert as well and even though you or i might have made a different decision why isn't that a professionally competent approach since she knew that her first one had been successful without an expert  a couple of hearts to that answer and one of them being that the prosecutor did not rest on his presentation from the first trial he went out pounded the pavement second reason is that neither counsel consulted an expert specifically with mitigation background in life history in mind form of ineffectiveness recognized in being in summerlin in daniel's closely related part of that answer is th that experts consulted for that purpose must be given background information about the client's upbringing in history the fruits of the investigation required by wiccans that's in cases such as wallace and actually not what we have here mr bacon do i understand correctly did when dr spiegel was presented with this other information that was developed later that you say should have been given to him early on that was manifested themselves in the in the crimes that were right there but couldn't wouldn't of a lawyer make a judgment call that maybe the good to come from that extra opinion the dr spiegel would have rendered unanticipated of all of the fact of the pesticides that that the expert being consulted would have no or had no other reason to suspect existed in this case mean i try to put myself in the position of a lawyer and i like to think well i would have made different judgments or done different things but i'm not sure at what point the lawyer can be expected to guide the mental health professional on what it is the mental health professional should be asking about and the kind of information that that you've argued should have been provided by the lawyer is the kind of information that i would have expected that the expert if he or she thought it was important in a given case would be asking about or seeking and in this case there's no indication that the will request by the experts that the that the lawyer did not respond to  interaction with mental health experts beginning with the  penalty jury understandably didn't testify about that dr chevy leni reporting that when david had problems in school psychological problems academic problems the parental support was simply absent there was just a warning the penalty phase about abuse in the home wasn't wasn't there the biases the emotional investments of family members as the court recognized in the void case apart from that the limited perspective a young person simply is going to appear differently to his peers through his school teachers then and point the fingers at one another which he said she said and this point the real message was last they did that the dysfunction in the family had gone had gone far beyond elvis was clueless as to how to form an appropriate relationship with a young woman none of none of this detail none of this that is so much more related to the charge crimes into the un charged misconduct aggravation this the jury didn't hear the jury didn't hear from any of the released peers as a teenager and a young adult saw him spar for positive attention just like the  babysitters had when he was a little boy they saw him paper vigilant always afraid that something bad was going to happen because invariably it had in his home the same functioning at a much younger level than his actual david's father testified to that he did not testify to it and finally the divorce the parents divorce when routh used alba used david to serve the papers on alba when david was in legitimate fear that he would have to family divorce is found the largest part of the answer to the question why did this happen on february second one nine hundred eighty five not on some other day when some other teenagers were visiting up at the mansions and i have no doubt that there is additional evidence that could be submitted and could have been submitted what i'd like you did to give me some help with this is what is it that makes the failure to present that evidence given that we have the benefit of hindsight now at the fate of present that evidence at the time unprofessional conduct by the attorney standard set by the supreme court's case law is really pretty low in terms of of what's expected out of an attorney why is this the start of decisions not to push individual witnesses the ones you've identified what makes that is a case where there was no realistic alternative penalty phase defense this is not a case that involves the selection from among multiple defenses there was no question of identity there was no not asking prior to trial during their preparation the question of explanatory question very similar to the question that the jury the end of mr released second trial ask counsel put limited effort into the case and we have all these tragic cases where counsel starts thinking three days before trial gee a better think about it defense and so forth in this case there's every indication that the lawyers worked hard on it they consulted experts and then made a judgment after consultation that there are better ways or better defenses to present or that should focus our energies on the other things so it's not a matter of of not consulting it's a matter of was the judgment made by the attorneys two attorneys that i think guilt in first panel you want to turn and i guess at the second one although she was talking to the first attorney while he was still healthy  they did seem to work pretty hard on the case and and in that sense it makes it different from from other cases where the lawyer dropped the ball completely a case of election among alternative defenses in the way the the court was was describing the presentation that he b s from our experts that can't be written off as common knowledge because they happen to be faults they came in part to the jury with a juror who had some special knowledge of the criminal justice that these inappropriate topics like without parole prisoners getting out financial cost failure to testify that i'm in total jerk teach  consumed at least ten percent or more of the time spent in deliberations spread out across the deliberations there were points that the judge it specifically instruct information to the experts for them to give a meaningful opinion or i'm paraphrasing yes yes but the very fact that they were experts dr spiegel you know says he examine really why why couldn't they rely on the expert to know what background questions to ask why isn't it reasonable to assume that you know it is important in typical for a psychiatry is to find out about a person's are allowed to rely on the expert himself to dictate what information they need the first step in the process is the reference question from counsel to the expert and  that that he needs but who's supposed to know that he has between the expert and the lawyer has the lawyer supposed to know what it is the expert is going to think that he need it's an informed two way dialogue and it is and it is for these purposes to cede the responsibility of the attorney to to see to see that it is fully fully informed both of the expert knows what the lawyer needs from from the legal perspective and then the expert has the information that the lawyer investigation has provided that will help the expert a lot so with that i will reserve time for heard in the end the district court found that the trial counsel in this case reasonably investigated the mental health defenses and effectively represented petitioner at trial  trial counsel knew before trial about potential mental health defenses and for that reason he consulted three experts dr spiegel dr livingston and dr french dr french said  disorder the doctors speak on livingston sexual psychopath blair that's what i'm looking for directly from those doctors where where in the record can you point to that page where d doctor's leg at any time he could have filed a hevia situation by which then he would be entitled to proceed with discovery and to depose mr sutton meister all we asked for was actually file hate us petition making the claim of any effective assistance of counsel so that we could see what the claim was and so that he would comply with california law and procedure and on that basis the superior court of california denied the request the request w denied me just tell you what my concern is from the point of view of your side of the case and and perhaps you can help me if we were to reach the prejudiced on about prejudiced we know they stand the evidence produced over the course of three days at the evidence you're hearing what petitioner claims should have been brought to the jury we know that the of course just social history on petitioner and the vast majority of that information had already been presented to the jury at the penalty phase and you know they sister kathy rarely and the father ralph really testified was not credible for a couple of reasons dr foster testified that petitioner had organic brain damage and that she was acting unconsciously as a result of this organic brain damage but we know her testimony that there are no tests there are no brain scans showing that he had organic brain damage petitioner suffered organic brain damage he merely assumed such conclusion based on evidence contained in that a political and that of course comes through in the testimony of dr foster and we've cited to the page in our brief where he sa i am making i'm i'm assuming that there's other reasons why a doctor fosters testimony was not convincing dr foster throughout disorder he had a disability similar to asperger's syndrome but he didn't actually have this he may have had attention deficit disorder he had an indication of bipolar disorder but it was unconfirmed  just throwing out a lot of you know unconfirmed noncommittal noncommittal type of the diagnoses and just to see what might stick another reason why dr foster's testimony w foster dr mark how explain precisely why it was inappropriate for dr foster to rely on the scientific american article that he did and why the conclusion of organic asked for something that's not there doesn't that give us some reason to think that if it had vende or the jury would have been interested in him and might have reached a different result and in particular i reason your honor it's because that at that time in those circumstances mary yale had an expert or actually she was aware of three x birds but in th outward signs of its illness defendant was making a choice in a sense he knew what he was doing was wrong so what we have is although i understand that speaking certainly to the guilt phase but at the time  penalty phase we're really on the legal definition of insanity and so forth we're trying to explain is this person the kind of monster rim's is by the reserves the most extreme on this month or other things in his background that even though he's guilty even though he could have stopped that he was driven to do this by things that we shouldn't hold him as culpable but the kind of argument she actually made and although i think i understand what you're saying with regard to dr steve linings with regards to y also read what he said it seemed to me he gave some degree of support to the notion that kind of abuse you suffered as a child had at least some role in explaining what he did later jury at the penalty phase was very accurate and very telling i even without any further expert testimony the jury could certainly connect the disadvantaged background of the petitioner with the crimes he didn't need an expert in order to connect the dots here and certainly the best course and well yes that's true but the tactical decision given the based on the juror questionnaires after the first penalty phase was very effective very moving and also the father's testimony and they had a very intimate insight into what the family life was light and social study the material provided by mr dallas would have reinforced my conclusion in one nine hundred eighty five that mr reilley did not have the personality pattern or history of a psychopath well again that's not very terribly helpful to the defense it doesn't really say that you know he had a particular mental defect that caused him or that contributed significantly to his crimes and therefore mitigated  phase that i overlook it or i think you're correct your honor she doesn't actually come right out on and say and give a reason for not calling an expert in the penalty phase she didn't testify at the evidentiary hearing the bad stuff to come in so late in the or whatever she would have said well i think that we can see from the evidence that was presented at the evidence you're hearing what she knew at that time from the declarations of the doctor's spiegel french and living she never says the reason that i here's my thought process well i'm not going to call a mental health expert but i'm going to call to strippers who are going to  character witnesses and here's why well i don't think that you need a statement from her precisely on that point that's the key point i mean that's that's everything is there anything that you can in did this but you know you can see from her conduct she knew about the mental health potential mental health experts and she consulted with doctors spiegel just before the penalty phase you know met with him twice explanation for the decision and she did work hard on it she did lots of work i get to that point and i understand that i've got the advantage of hindsight but i'm puzzled as to what rationale there could be not to given that some of the first trial defense at that time or even now and possibly marielle might have felt that the state could have come up with someone like dr markel who was highly effective at the evidence you're hearing and  d his opinion that the defendant was not suffering from any mental disorder his problem was anxiety and you know social anxiety and being socially elite eason and  this certainly didn't explain the why he killed one person and attempted to kill another so you know he dr spiegel could have just a withered under cross examination and you could have been very effectively refuted by an expert from state so for these reasons she could have chosen not to present an expert in and rely on the family members to paint this portrait and then to give a very stirring closing argument as she did  had been a model prisoner for that in jail for the last three years she certainly expressed in great length the disadvantaged background that he can petition or came from and that perhaps you or i may have survived this background better but petitioner simply didn't have the resources didn't have the capacity that you and i may have to survive this ordeal in childhood and do come out of it unscathed it didn't take much for the jury to be able to connect the dots that this child has that he suffered through may be the cause for what happened hearing so we don't know what he would have said that's just a big question mark there correct i would like to address one question that just to scrape or ask mr bacon  repressed his tremendous rages toward his mother so it's quite clear from these notes that both doctors french and spiegel had interviewed petitioner about his childhood and knew about his background and probably knew a lot during deliberations about whether alvah would actually be a life sentence and that they did talk intermittently about the fact the defendant did not testify and there was mention about the cost of an l wop sentence versus here it appears came from a common sense common knowledge you know every day understanding of the jersey that people at the jersey bring to the courtroom that card i understand about the cost of incarceration and what a life that is means i don't quite get how the district judge dealt with the fact that they talked about his failure to testify that seemed to be reduced to a kind of a cryptic footnote overall and it was intimate and are we allowed to even give in to the jury deliberations in that way i mean clearly it violated the instructions to consider if they did talk about it that the defendant didn't testify but what do we do about that when the jurors you know deliberations talk about things that happened or didn't happen a trial that is they're not extrinsic to the trial they're part of the trial and they're part of the jury thought process are we allowed to delve into that well your honor we had opposed petitioners making this claim on that basis that it involves the thought processes of the jurors and that we are prohibited from going into that the district judge has rejected our argument and proceed it but we i do agree the discussions about whether or not he actually did testify is not extra indicates you what happened in the court room it's not new information brought in and everybody could see that he didn't testify and the fact that he remarked on it may have been against the instructions on not to discuss that in your deliberations but certainly he's not extremes of evidence everybody was aware that he would he didn't testif the district judge failed to apply the proper legal standard for prejudice and a witness and terry williams it's not about which witness the district judge found convincing or not it's a matter of re had been presented here we're talking about at least one juror on a jury that asked for psychological evidence and her mother as a rebuttal witness based on that evidence the district attorney was able to argue to the jury that mr reilley had good and supporting supportive and caring parents when he the evidence presented at the penalty phase and couldn't be refuted i as to state heaviest law so there really would not have been entitle to discovery simply upon the filing of the heaviest corpus petition but only in that handful of cases in which the court at some unspecified time down the road grants an order to show cause which is only a small proportion of the cases and often is a great length of time after fundamentally what we're talking about in mitigation in a penalty phase is not diagnoses out of the d s m we're talking about explanations for behavior we're talking about dr foster saying that this man function you have his brain tied behind his back that he functioned like a ten year old except under stress regressed to age four or less and dr foster was able to find in the background information background information that was not before the jury the same themes that he was then able to find in laurie mckenna's testimony about what happened at caroline's able to tie them together the way that the jury couldn't both because let me ask you and i'm sorry presiding judge may indulge you a few seconds beyond the answer to this question to sum up the response i heard from from the state to the why not question was in essence i understood it that the professional that was a doctor spiegel's testimony the professional testimony that might have been offered would not have been that compelling and would have opened the door or made it more likely that the state with present someone who might have been more effective on that subject and in the end weakened the argument that musial could have made to the jury at that time why would that not be a professional judgment that ought to be respected as such why is that an unprofessional judgment if that was the reasoning process and we're speculating we don't know her reasoning process but if that was that what's unprofessional about