as i understand you've been told our presiding judge is listening in and speaking in from houston she's on a panel over there where we occasionally will quite often sit and so this is a way to make this work out i see how you have a lot of your time follow our lighting system and we may have plenty of time or you may find yourself with more to say than you have time but you're used to that it's an important record excerpts have been quite thorough is there anything further were we to grant a c e o way on one or more issue that issues that you would have to present to  i think that you know we do think that the presentation we've put together that so far not only wants to see a way but in fact relief i think if we had the opportunity for further briefing we would welcome that in part because our briefing thus far has trained in in large measure on the reasoning of the district court in order to demonstrate its debate ability whereas obviously once the c e o is granted there could be more of a clean or narrow focus on the unreasonableness of the state court s treatment so i think that that could be useful in that respect but to address this slightly different standard of review that would apply there are no the lawyers always like more pages and more time i'm trying to get a can answer of whether that's really necessary here in light of all that we've been presented and not doubting that you gave us a candidate in two but you might any slack on that that would be helpful i do think what we've said is is enough to wa relieved but of course we would we would welcome the opportunity and i'd like to focus at least initially with the court's permission on two of the issues that we've briefed first that the presence of racially biased jurors on the panel violated mr thomas constitutional rights and the associated failure of counsel to question or or challenge those jurors and second that counsel are only fail to conduct a reasonable mitigation investigation and preparation for the punishment phase beginning if i may with the juror bias issues as this court recognized and the virgil case that we cited in our briefs it's clearly established federal law that a criminal defendant to me were to marry him and ultimately jurors said they were not sure of the terminology in light of relationship with law enforcement crime victim in the family disagreement with the lifestyle towards wish your best case to say this sort of belief is is the kind of racial prejudice that the case law  statements of the type here which is to say not just checking a box about opposition but the volunteered at school and nations that these in your members gave for why they have those views so for example juror copeland who your honor correctly notes was never questioned at all went on to explain that his reason for opposing the marriages was grounded in his view that the bloodlines shouldn't be mixed juror armstrong who similarly was never questioned went on to explain that she was concerned that any children that came out of such a relationship would not have a specific race to belong to and of course jerome or who was the the juror who was questioned went on to explain that interracial relationships were contrary to god's intent those are precisely the kinds of concerns that the supreme court recognized in loving as based in fundamentally racial bias now the problem here in thorough opinion and he says that the problem here is not only what we know but what we don't know because not for the question but we don't look that winds up against not that opinion but that concept in the application runs up against the problem also or the decisions being made by counsel and they don't generally explain but trial decisions tactics and whatever there was some isn't there some information from hey good in his affidavit or otherwise that he didn't want to pursue this in a more direct way he does say that in his second affidavit which of course is diametrically contrary to the first affidavit he submitted in which he said there was no intentional strategy i just simply didn't ask what we know here is that the jury these questions were posed to the jurors and to the veneer members in the first place precisely because the inner racial dynamics of the facts of this case were so palpable that it was that it was recognized that this was an important question that needed to be asked so it's not a reasonable strategy to then say well i don't want to inject race into the discussion race was already injected into the discussion and these jurors gave extremely troubling responses decide omer just for the sake of argument the one the had knowing the other two had they when you talk about the box checking were with the other two ones that check mild preference personal view or were either of them the vehement they it was the one who checked that the other two jurors checked i oppose it but i try to keep my views to myself and then went on to explain in their written comments in mr case he thinks the bloodlines should not be mixed in ms armstrong's case children should have a specific race to belong to and we think that's just as troubling as as the checkbox a vigorous opposition and not afraid to say so and one reason why  why that's so troubling and why other sort of more generic assurances of fairness that the jurors might have given in response to other questions were not adequate and that's because in part as the supreme court recognized and turner versus murray in a capital case where the sentencing proceeding will require the jury to make a holistic moral assessment of the defendant's character and moral culpability ultimately decide is this a defendant who deserves to die as the supreme court recognized that is a process of deliberation where racial bias has a unique opportunity to operate undetected and so purposes of strickland ineffectiveness the state court here the sole reason that the state court gave for rejecting this claim was because the state court saw it there was no proof that the jury's verdict was actually motivated by race racial discrimination but as virgil and the cases it cites make clear that is not the correct standard that's that's contrary to clearly established law which makes clear that this is a structural error that necessarily renders the proceeding unreliable and fundamentally unfair and particularly here where the facts of the case involved in interracial relationship between the black defendant and the white victim  the racial dynamics here were palpable and obvious and for to hear see the jurors give these statements and then to do nothing and sit to take no response whatsoever whether to move to challenge for cause to exercise a peremptory strike or at least to question them it was on reasonable particularly where i know mr haygood one of the points that he makes in his second affidavit is well i needed to be worried about whether there were other worse jurors i would suggest that you know reading through the premier of the board here doesn't doesn't bear that out but most importantly mr haygood can seize on the state court made a factual finding that the defense did not exhaust their peremptory challenges and so it's simply not a plausible explanation to say you know i needed to be sparing with my challenges here if you didn't want to make accusations to jurors he could have used some of those strikes and  overwhelming that he didn't have any good do not have any plan but he does have an affidavit that says he did have a plan it was not trying to accelerate the focus on this sort of exact increased focus on this  us today i mean so far you know more but this has been looked at by three other courts and the most important one is the state court  twenty two fifty four d one standard as i've already pointed out the state court applied a standard that was contrary to clearly established law the court's decision and virgil makes that clear when the state court said that that the test here is whether there's been proof of prerequisite for relief that that's the that's the explanation that the that's the only explanation that the state court gives for denying relief on that claim is that mr thomas had failed to prove purposeful discrimination by the jury and failed to submit evidence that the verdict was racially motivated that's not the test as this court made clear in virgil with respect to reliance on mr haye goods affidavit we think that was both an unreasonable application of strickland and also an unreasonable determination of the facts in light of the evidence and i think it's important to spend a little bit of time talking about mr hay goods second affidavit because it is utterly incredible for any number of reasons  many of which actually pertain more to the mitigation issue which i don't want to preterm it the discussion on this one but maybe all get there because of the importance of the hey good affidavit mr haygood his in support of the state writ application he swore under penalty of perjury to certain things that mr thomas relied on six months later he signs the second affidavit which in almost every respect is irreconcilable with his first one and there are many statements in there that we know to immortal certainty are not believe a ball because they contradict the trial transcript itself all start with part of what mr haygood says about his preparation for the mitigation investigation i think it's important that you get to both points that you want to make and i bet you question you try to respond to it i don't want to drag us too along into this issue  you're mr haygood in his his second affidavit is i think the only read that the state has to stand on here and it is not believable number one mr haygood tells in his second affidavit a detailed vignette about how he thought that mr thomas is on the primary witness he also talked to two brothers and the father they did really well when he interviewed them but then on the stand despite his best efforts they fell apart and he abandoned their questioning that entire story is one hundred percent irreconcilable with the trial transcript which reveals that mr haygood never questioned or put on any of those witnesses two of those witnesses were called by the state not by the defense and it was ms peterson who conducted their cross examination the other two witnesses were put on by the defense but again it was ms peterson who conducted the questioning of that mr haygood is not in the picture in fact throughout the entire penalty phase mr haygood questioned only one of the nine defense witnesses and only five of the twenty prosecution  story that he spins in his second affidavit about the deep strategic thinking that he was doing in preparation for mitigation is is simply unbelievable when we look at the trial transcript and what actually happened he says other things like i didn't want to put on every human izing evidence of mr thomas's background and mental illness and and struggles with with substance abuse because i was worried that the jury might view that as supportive of future dangerousness well if that were true why then did he make that the central theme of his opening and closing arguments to the jury at the beginning and the end of the penalty phase those are just a couple of examples of things in that second affidavit that simply do not add up and to the it the state court credited that affidavit it was one hundred percent unreasonable in light not only of the contradictions between m first and second affidavits which you know this court probably sees that in a certain number of cases but this affidavit is also contradicted by every other member of the defense team's affidavits and by the trial transcript itself so once we take the second haygood affidavit off the table it leaves no strategic justification for failing to take any action response to these jurors statements of bias and it takes off the table any explanation of reasonable strategy for the failure to investigate on the mitigation case now with respect to mitigation it's it's i'm contradicted in the record that toward the end of the guilt phase ms peterson who thought that mr haygood was handling punishment all along finds out all of a sudden that he hasn't done this he says to her who do we have for punishment so that's how you characterize it his affidavit when you think don't discredit as much says that he had been working on the punishment phase whatever he had to show for it or not but he does dispute the interpretation that peterson gives to his state he says and the state court credits that he spent many months preparing all aspects of the case specifically with reference to the punishment phase he says i'm a marine correctly that's what he says i had the punishment stage peterson had the guilt in the first affidavit he agrees that that was the division of labor ms peterson agrees that was the division ms peterson's assistant lee stop agrees that was the division of labor everybody agrees that it's what was going to happen and then toward the end of the guilt phase mr haygood as reported by ms peters and the step says hey who do we have for the punishment phase we then see the evidence in the peterson affidavits the east up affidavits and contemporaneous e mail traffic showing that they are scrambling over the weekend but tween the conclusion of the guilt phase on friday and the commencement of the penalty phase on monday scrambling to put together a mitigation case mr haygood did hire a mitigation specialist in september of two thousand and four a few months before the beginning of trial but it is uncontroverted in the record that he met with her only twice once for half an hour to give her a general overview once to have lunch in which she reports we barely talked about andrea thomas at all she didn't prepare a social history report because counsel never told her to that's one of the hallmarks of the supreme court recogniz disagreements with what is done less than the optimal presentation is almost always made accepted by counsel but in drug court and you don't get relief because some things deficient i noted because the supreme court highlighted it in particular in the wigan's decision as one of the steps that prevailing professional norms calls on council to do but it is certainly not the only thing i already mentioned the fact that they were scrambling to prepare over the weekend of course and williams versus taylor the supreme court encountered a situation where council spent a week preparing and the supreme court said that's a reasonable and granted relief they did engage an expert witness who was kate allen who was the social worker her her both her testimony and her affidavit further made clear that you know they hired her i think a couple weeks before the penalty phase began they decided the monday night of the first day of the penalty phase that they were going to call her she drives to sherman that night prepping on the phone with ms peterson for her testimony on thursday where the prosecution is able to dismantle her testimony by pointing out among other things that she had only ever even met mr thomas in an interview the day before during which she took no notes had no took no report and in fact had hardly reviewed a fraction of the record materials that counsel should have had her prepare all of this added up to a penalty phase in which the jury saw an incomplete and misleading picture of andrea thomas life if they had conducted the investigation they should have done what the state a b s record reveals is that the jury would have seen  completely different picture of andrea thomas's humanity and moral culpability and there were there was some suggestion by the district court that the evidence would be cumulative and that's simply not not the case and there are i think three particular categories of evidence that are in the state habeas records that are different in degree and kind from what was before the jury in particular there was evidence of mr thomas's struggles with mental health from a very young age now of course throughout the guilt phase his mental state was a major issue to the jury but the evidence there was all focused on what was his state in the months and year or so before the murders what the mitigation case would have shown is that as early as the age of nine hundred thomas was struggling he was hearing the voices of demons demons who were telling him to do things and that it scared him this was a picture of a little boy who needed help but instead of help and treatment the record shows that what he received instead was significant neglect and abuse just because your time's running out of the five claims you're making how many of them involved the secret findings or procedural gleeful in separately how many of them involved the district court federal court saying that fair minded jurors might disagree and what's the relevance of the district having said that there are no we have not raise any issues in this court that the state court found a procedural default on the district court reviewed all of them even the issue that's the that's the ineffectiveness with really with relation to competency we are not raising here a straight up competency claim that claim was your correct procedurally defaulted but the ineffective assistance claim was presented to the state court which rejected it and reliance on a standard that is to clearly establish law because the court there said in order to raise competency there had to be certain certain factors i think they said history recent history of bizarre acts and mental illness i mean it's the wrong standard but frankly we think it's a standard that was probably met here but in any event it was the wrong standard so we've raised that as an ineffective assistance claim all of the claim a question but i don't want it to be seen to be in consequence of course the the one the one footnote on that is with respect to our eighth amendment claim where for the reasons we explained we think the supreme court's decision in montgomery versus louisiana re twenty two fifty four gloss but you know other half of the question if you're permitted would be any relevance to the district court's conclusion that fair minded jurors could disagree about several of the points well we we think that's wrong but of course here we're we're only here for a c e o and so it's certainly debatable did he find that it was to be at the same time see tonight if i did i was unclear as to how you would interpret that statement i am i'm reluctant to say no because i suppose if he did that would be helpful to us but i honestly i don't recall any point in the district court's opinion  perforce establishes that a c away ought to grant on those issues i mean i think that sort of one it goes back to your honor's initial question about what would be the the difference in the next phase would be focusing on exactly why it's not a case where fair minded jurors could disagree but in fact a case where the state court's decision wasn't reasonable year is there determine whether she always should be granted based on that standard and then to deal with the merits perhaps in a separate seating we were having oral argument in fairly lengthy briefing it's not as if we granted a c away and now is asking the state to respond  suit at this stage the state while the facts as has been noted are certainly disturbing and complex and some of these issues raise interesting questions the  state does not believe that the resolution of the legal issues is debatable notice and that you don't think any see a way is necessary about where we to grant to see a way where would that leave the state in more briefing or more all i mean i believe you do and not of course the court has done that a number of times over the years has held oral argument at the cia stage determined that's the way it was warranted post oral argument granted  opinion and then ultimately denied the relief relief on the merits without further briefing just one if you think buck may have changed the propriety of doing that but we will deal with it that seemed to be a little bit what the district court was doing but that leads into the uncertainty i was asking opposing counsel about what even has to be your poor dear interracial marriage or the district court did say fair minded jurors could disagree wouldn't that largely encompass whether we grant to see a way to my way of thinking it does but again the state's and our position right now is that no cia should issue well how do you say that it does justify c o a but still tell us we shouldn't granted the district court can have its opinion about how it feels about the issues and if it i smell that a cia should issue on that particular claim then it well related to that issue on page thirty six of your brief you say trial counsel extensively questioned all four regarding whether thomas and laura's race would impact their ability to remain impartial you said all four indicated it would not you didn't give a record cite is it your position that when i look at the transcript the trial counsel questioned copeland and armstrong as to whether or not their race would impact the ability to remain impartial i at this point i have to admit that was a mistake in the really significant mistake it is your honor and if you why didn't you correct it because i did not catch it and tell him now are laid off whenever you caught it i apologize for that in the future if i catch such an error i will correct i personally i'm going to speak for the panel that's inexcusable if you're saying that you did catch it and you made a choice not to notice us that on that issue until now you're apologizing i don't believe it was conscious choice not to notice the court all right i will say this that my it well well i have few other questions about your brief on page forty one the headings could you read that get the brief there ye what is this is the heading you have because thomas was not competent counsel were not ineffective is that another mistake yes on a personal note i think well that's another pretty salient mistake you're telling us now you didn't you meant the opposite it seems evident that you have that ok one of them that he had talked about and what do you say about the heading on page forty one is  we're just respond to what would you say now about what should the heading say thomas was not incompetent is what it should read ok well then it's not just i mean it's not just little straight typographical errors pages forty two to fifty one presented to us in the c e o in the appellant spree they raised according to their headings five issues those five issues composed or were comprised of several multifaceted issues and the district court when i was responding to the c e o way i did the best i could with the way things were briefed and i chose to go this route and cover all of the bases if you well if they say that there is not a don't dare issue before this court then there is not and i apologize for the extra briefing i was only doing responding to their briefing which mentioned perhaps in a sentence or two or three that you know in addition to all of these other mistakes that counsel made counsel also did not make challenges against each and every state's expert ok and i felt it was my responsibility to respond to those claims even though there wasn't a particular heading associated with that claim if that makes any sense good with  jump immediately to mind that first of all the the state is not contesting that these jurors demonstrated a bias against interracial relationships and questionnaire  in the jury questionnaire we don't know where that question came from we don't know exactly why it was in there except for the fact that andre thomas is black and laura born was white you say the record doesn't reflect   don't know that question is there these jurors answered that question and they answered in a way that it did that demonstrate that they were biased against interracial relationships on the face of that questionnaire and that those answers alone those jurors were not challengeable for cause or not and i understand that counsel did not for at least copeland an armstrong dire to find out if they could have been challengeable for cause but at this point on this record including the post conviction record there is absolutely nothing to demonstrate what answers would have been knew in virgil is that someone was concerned because he had a relative was in law enforcement someone else was concerned about something similar well maybe a similar but but mugging the criminal victim of her mother but  by itself was enough for the court to decide the failure to pursue that and to find how serious it was the intensity of that problem was enough to grant release who had always is different this is different because virgil involved expressed statements in which there were zero follow up questions by and by express to express statements of bias expressed statements in the courtroom on the record and the trial attorney said the joy would say to certainly different starting point it is a clear statement of not liking what that defendant did in a racial context yes stated in his affidavit he stated two things that i think are important here one that as unseemly as the statement is he doesn't like to ask those questions because it can cause jurors to withdraw further and he will not give truthful answers this is the same explanation that this court accepted in sterling which is in my twenty eight day letter that he's willing to ask i guess was he good was willing to pursue it with omer and one of the one dollar and said that he did not basically his answer was i don't care who you murder or murder is murder and you have to accept the consequences for your actions of the other two it's true the council did not get into those questions they did ask the generalized questions but those those couple and armstrong were i guess the word that had been used before was mild their expressions and the supreme court itself has recognised that delving into racial bias can cause problems and to go a little further down that road yes this is an interracial crime there is a a black man killed a white woman but that is not at all the crux of this case the crux of this case was a marriage that went south and when it did mr thomas could not accept that fact mr thomas killed his wife because she would not come back to him it had absolutely nothing to do with her race or his race or anybody else's race it was all about revenge and obsession with using the stated merits and certainly the defense serious that the defendant was psychotic and the is absolutely what basis so you're saying that this was a revenge killing or whatever whatever the right label for that is does seem to be missing the greater point that even you acknowledge that this is a matter of a person who is this court has recognized that when a trial is not attended by race lana not animosity and when there is no evidence that the race of the defendant or the victims played a role in the off chance trollop the trial attorney is not deficient in this area and they're going to that's not exploring with random or every juror or what is your feeling about racial issues it was that in the context in which there was such as a questionnaire or through some other means actual concern about a few individual jurors who are expressing objections to certain racial  points it seems we have some much different situation if you're just talking about case one of the generally says there's no obligation to get in to questions about race in the absence in in the usual situation but here we are three very specific with your well there were cases that involved into racial crimes i don't know specifically if they involved you or who had indicated in place to make is just to is this removed from actual bias against an african american leader or objection to a relationship but if it is a racial bias evidence is it ever enough is that ever enough if it's a racial bias situation if this is an actual racial bias if it's a situation of false one case law dealing with racial bias as opposed to one that's if you have argued it is is not in that category that there's not evidence of racial bias from the question here is what you said early on but if we say that it is is that enough to gray good to have asked can you be fair if we were talking about a case of actual opposing counsel made light of mr head gets affidavit regarding the much more stores and i think that as as a kind way to put it made light of anyway made light of those that explanation i believe that explanation was under this or under these circumstances in this case i believe that was a pretty good one as i said racial bias or the fact that we had an interracial marriage here was probably at the bottom of the pile for their concerns their concerns started with high publicity under his arrest his confession the facts of the crime all of these things were on the news and on the t v many jurors came into the courtroom and announced without provocation or hardly any provocation from the trial court that they would find him guilty right now he was already guilty and he should be hung yesterday we don't have a change of venue issue here but was that thought of a new original as far as i'm aware it's not in the record so if it was it's it's not there we also have the other single biggest thing the mental health issues the n g i plea that trial counsel knew was going to be made the competency just france stand trial that may or may not be an issue who have a lot have a lot of very strong feelings about mental health issues and particularly mental health experts there were jurors who wanted the defense to bring them every expert in the land there were jurors who said do not bring me a single expert because i don't believe a thing they have to say there were jurors who wanted physical evidence of mr thom 's insanity these are jurors that are going to increase the burden of proof for the defense on the cornerstone of their case by a significant margin there are jurors who were going to require him or or wouldn't allow the presumption of innocence on either guilt innocence or future dangerousness simply because of the publicity because he had killed children we're talking about there are other jurors that defense wanted to avoid the more there were definitely causes for greater concern in this case and as i said i was in council corrected they didn't use their printer reason spite of this vast array of concerns they used all but one yes so they left one on the table they used twenty three challenges for cause and fourteen prime to reason through the three the voir dire and the twenty three from challenges for cause were pretty clear cut were extremely clear pat as this court knows decipher why a trial attorney uses a peremptory challenge is can be very difficult without explanation and we don't have one here but from my reading every time it revolved around the burden of proof whether it was the burden of proof on insanity burden of proof on guilt innocence burden of proof on future dangerous future dangerousness or just generally the presumption of innocence  and your own of course an issue not discussed by your colleague on the other side there has to do with the handling of the involuntary intoxication in the use of  an expert who was not fully cause of who fully qualified they say to testify as to the effect of the axiom and what of the acronym is the core seed an active ingredient in and alcohol in the system it seems to me that this does fit pretty close to the joan case another even botham opinion that set some important law for us and as i understand what draw argument for having this man is too high to establish no scientific that there was no scientific basis for the state's theory that andrea thomas was under a substance into psychosis when he committed these murders the problem with that is that the d s m metabolism study would not have done anything for that and in fact the jurors heard about dx and metabolism from one of the states toxicology tests during the trial what you're saying is it's relevant but i affidavits post post trial affidavit i'm asking at the trial itself not to have someone who could testify as to take in the lab results of how much was in his system the day after or whenever that was done the actual almost an exact undiscovered or such a low amount of the active ingredient of the dangerous green core scene taking all that evidence to dispute the state's theory that it that he wasn't psychotic from natural causes it was from voluntary causes not to have an expert all that is very science supports what the defense is saying but don't don't they need an expert because i i didn't you want that but there was more than enough evidence to show that at least in the month proceeding the murder in the days and weeks leading up to the murders the mr thomas was pretty much high and drunk all the time in addition to taking the d x i'm on at least three different occasions that we know about that are that are  moralized on the record there was no testimony necessarily that enough that the substances which triggered the psychotic episode were still in his system when he murdered his wife and child yes there is an estimate and then again i didn't quite hear mr haye is affidavit there is no testimony that the substances which triggered the psychotic episode the combination of the d s m the marijuana and the old forty five's the malt liquor were still in his system when he murdered his wife and children there is some evidence a little bit later that there were metabolites a little bit of evidence of t h c in his system but there's there's just not enough there to show one way or the other are whether all these drugs in such a potent form were still in his  system to my way of thinking in other words it doesn't matter if the drugs were still in his system at the time what matters is that he had a psychotic break as a result of the drugs that were in his system in the twenty four hours before the murders that's that was the issue before the jury whether the drugs were still in his system is i would almost say irrelevant because many of the experts also testified that yes once these drugs even leave your system and it may take some time but once they're out of your system you can still be psychotic and in fact you may enter into a permanent psychotic state it will always be a substance  psychotic state but you can always be you can be psychotic the experts all agreed on that so whether and yet another expert comes into the jury room into the into the courtroom to tell the jurors about derek semma tab alliance and how much may or may not have been left in his system and what the met metabolic rate of this was i think is is kind of irrelevant to the whole story the the question was whether he was insane at the time of the crime and that involves a question of mental disease or defect and then that involves the the secondary questions of was it voluntary or was it organic and as i said the state put on plenty of evidence that his consumption of all of these drugs even even those stopped at a certain point could still render him psychotic and in fact we have the evidence that it did that it does we have the evidence you have evidence well i would i was contrary evidence is is what my question concerns that the defense failed to produce but i don't believe the state i mean i don't believe the state i don't believe it was necessary for dealing in fact the issue could have been made and therefore this is irrelevant that your evidence was conclusive and there is no way the state by state what they have shown so far in the hayes proceedings could have produced and the experts agree in fact question that that is correct i do not believe mr thomas is the addition of these experts  note that mr haygood did search out other experts perhaps not nurofen psychologists and neuro pharmacologist but he did search out to other experts and they both evaluated mr thomas  dr richard rogers evaluated mr thomas and indicated that he blew the top off questions about lingering and dr j crowder thought a psychotic break with substance abuse so these are two experts that once again the defense had to cross off its list of people who could come in and testify to the specific issues before the jury that is insanity and the mental disease or defect and whether he knew what he was doing was wrong and this leads to the point that the defense wanted to avoid at all possible costs having these opinions get in front of the jury particularly the one of dr richard rogers that would be very it was it was bad enough that there was already evidence of thomas maleng that several of the experts talked about  have this juror this expert's opinion become known i think would be even more damning on the if i have a quick second on the i don't know you have time to tell us anything ok we have your brief ok i  thank you your honor this sergeant spoke about the crux of this case the crux of this case was whether andrea thomas who committed brutal murders amid what everybody agrees was in the  psychosis whether he deserves to die for those crimes that was the crux of those caves and all of the issues that we've raised pertain to the prejudice that he suffered on that fundamental question as a result of counsel's errors with respect to juror bias i spoke earlier about the supreme court's decision and turner and the effect that undetected racial bias can have on the holistic moral judgment that the jury has to make in the jury room and mr argent pointed out correctly we agree that because of the failure to question we have no idea the depth or intensity of the jurors views and how they might have affected their evaluation of mr thomas character and his moral culpability there was some discussion about mr haygood strategy again referring to what was going on with all of the other jurors but reasonable strategy to be reasonable a strategic decision must be informed and having failed completely to question two of the jurors and to question inadequately the third mr haygood had no basis to make a conscious informed decision whether to challenge or use a strike on those jurors the district court described this is a conclusion reclaim and if so how does that make sense  i don't believe they described it that way i might be misremembering but if they did it certainly wouldn't make sense because we you know i think it's a meritorious claim conclusory in that that there isn't enough development of the record to know i think there was some characterization i think by the district court not by the state court that the assertion of bias was conclusory in the sense that it rested solely on the boxes checked and the statements written in the questionnaires that's what comes to my mind about what was supposedly conclusory but i think for the reasons that that have been discussed the bias that was there was one that went straight to the heart of the factual dynamic of this case and again because of the failure to question as this court observed in virgil we can't know and that's part of what renders the proceeding unreliable when you don't know how this might have affected the jurors evaluation of the case and just for the record the point about exhausting peremptory is page twenty one thirty three of the r o a where the state court makes the finding not only that the defense did not exhaust their peremptory strikes but that the court would likely have granted them more if they needed them that's at twenty one thirty three judge southwick what is that document i'm sorry that's that's the state courts findings of fact judge southwick you your honor brought up one of our other issues which is the failures with that's fair enough i think what we've really focused on there is what your honour's questions drew out which is in a situation where mr haygood who had claimed responsibility for the preparing the expert presentation we know that he understood that the real fight in this case was about the cause of the psychosis we know that he knew that the experts he had were not qualified to opine on that we know because dr harrison and ms shada and even the prosecutor suggested to him that there might be other experts who could attest to that and yet mr haygood failed to investigate fail to uncover those other experts and the results you know with respect to the affidavit of mr lippman it's not just a metabolic study he goes on from there to discuss how the symptoms and behaviors that mr thomas demonstrated were not consistent and were fact in fact distinctly different from the known  expertise and he gets into trouble on cross examination but nonetheless the jury did have in front of it a professional statement that this came not be the explanation the state's explanation is not correct despite whatever qualifications you might want to put to that wasn't the jury told that the stage theory is scientifically horrible war that mary spawn oh please yes and what mr haygood tells us in his affidavit even and even consistent with his second is that he knew that dr grip wasn't fully qualified to give us forceful of an explanation on that point as he otherwise might have wanted and that he therefore had to restrain h questioning on that point and and this goes also to the mitigation issue as well because ultimately as ms sargent suggested what we had here was a fight about what was the cause of the psychotic break and what the jury saw from the prosecution and from the failures of the of the defense counsel was a situation where mr thomas as a result of his drug abuse suffered a psychotic break right before the murders what they should have seen and what would have gravely affected their evaluation of whether he deserved to die was that from as a little boy he was suffering the effects of this organic mental illness he needed help he never got it and all of that the bias the failures on the experts and the the utter failures to prepare mitigation he's clearly prejudiced the ultimate decision on sentencing and without i would just close by just for the sake of clarity since i don't think i was very clear the first time we would be more than happy for the court to go on to to a decision on the merits obviously happy to submit for the briefing of the court would find it helpful but just want to return for oral argument are to me happy also to return for all or none and if the court would find it helpful  see thank you both and all who have come for this important set of questions for us to resolve we are in recess