good afternoon your honour's king corps for appellant gerald hand and i'd like to reserve three minutes of my or seven minutes of my time seven minutes seven minutes seven minutes judge for rebuttal thank you honor is we raised a number of issues in our briefing in this case for purposes of today i'd like to focus on two specific issues and those both involve claims of ineffective assistance of counsel the first claim involves our claim involving the valar dire in this case and specifically trial counsel's failure to conduct any inquiry regarding the pretrial biases of two of the jurors on the panel and these were biases that were demonstrated  and shown to exist in the jury questionnaires themselves the second issue i'd like to direct address is trial counsel's deficient conduct at sentencing and specifically its failure as we submit to put on an effective medication strategy with respect to the question of ineffective assistance of counsel with respect to the dire and questioning regarding pretrial publicity the sixth amendment guarantees criminal defendants the right to be tried by an impartial jury and as this court has recognized among the most essential responsibilities of defense counsel is to protect his client's constitutional right to a fair and impartial jury by using or to identify and ferret out yours who are biased against the defense in this case hand received an effective assistance of counsel based on trial counsel's object failure to address in any manner the biases that were still stated in the jury questionnaires of two specific jurors with respect to this case the pretrial publicity in this case was widespread this case was in delaware county it was one of the biggest cases at the time and we direct the court to record citations six five to six to six six one seven and that's a compilation of the many newspaper articles that were compiled in or in the record relating to this case i'd like to call the court's attention specifically to two articles though one i draw the court's attention to primarily because it's actually referenced by one of these two jurors who are going to talk about but there was a gag order in place here and the articles that appeared in the newspaper were very very one sided and i just want to draw the court's attention to a few of the references in these first the case from march second two thousand and two the relays a fair amount of detail from the affidavits in support of the search warrant to search his house who is one of the victims here a stack of money supposedly part of a fifty thousand payment to walter welch to kill jill hand was seen in the court documents said police were told that welch admitted to others that he killed hands first two wives the documents states in his review of the donna and lori hand murders detectives of the police unsolved homicide case review team noted that mr hand received substantial monetary payment from insurance policies the detective also states that donna laurie and jill hand were planning to divorce hand before their death according to the court papers a welsh family member told police in late january that welch was going to hans house to do one final job the family member said welch told him he would collect a large sum of money that was from an article in early two thousand and two here's one right before the trial referencing that hands first wife and second wife were found murdered and giving details regarding that references that welch was in fact a very good friend of hand for the clear way in which food issues were presented was helpful to me thank you where in that are you right now you are you doing in effective assistance of counsel for not having more rigorously  presented this issue correct the claim here is the count trial counsel was ineffective for failing to adequately question two of the jurors of the potential jurors who ended up being overview here of this court on the ineffective assistance claim and we would note the state court rule on either of those no and though the basis for overcoming the procedural default here is both and prejudice this issue was an issue that could have been dealt with by the council on direct appeal in fact they expanded the record to specifically obtain these jury questionnaires but  has not been dealt with on the merits and what was it that you did you have just said about about not getting the jury questionnaires within the defense of had the jury questionnaires at trial yes and they did have the quit your questionnaires at trial and that's the basis of our ineffective assistance of counsel claim the extra days questionnaires were drafted by counsel they were put before counsel counsel had them at the time of the voir dire and on the questionnaire quote seem probable was involved in your brief then says when asked whether the publicity made her think that hand was guilty finda more answered yes does that mean orally at the at the board dear no that was the question sixty three in the questionnaire and that's page id six six three eight and here's the question based on your exposure to these allegations on t v in the newspaper and elsewhere do you think  guilty the options were yes no not sure do not know and this potential juror answered yes ok and then the there was there was oral for deer the counsel got to see the person got to see their responses and the answers that were given carette is correct and i'd make two points on that first that was group colloquy these these jurors were question in groups of three to four jurors and there is strong this a group of three or four years that the groups range from three to six and i'm not sure standing here how many were in this group but it but they were all brought in and how many there were in this particular group it might have any problems or did this say you know juror x can you set aside your your any preconceptions doura why there is a transcript some of the questions were directed at the group some of their direct questions were directed at the individuals but none of the no questions were directly asked of these two jurors regarding pretrial publicity and whether the specific two jurors what the basis was the group was asked those questions but i would simply refer to this code court to a lot of authority including clued in the supreme court decision and irwin v doubt where the court called into question the effectiveness in terms of rehabilitating a potential witness when you do this through group questioning other cases in this court as well have you know noted that this type of group questioning is just not defective there is a psychological effect that can happen there's no constitutional principle that prevents that i take it derwin v dowd quote called into question that as they pointed out some problems under the facts of that case let me ask you this do we know how many peremptory as they had did they use them all that sort of thing is that in the record it might be on the record i do not know here whether how many there were how many were how many total were interviewed and i guess the reason i'm asking these kind of questions is that when you're a trial lawyer picking a jury you have to look at what's you got against what else you might have and one might consider if you once you've seen the person seen their answer that that pressing it wouldn't be a good idea that they seem pretty good now that it was an offhand i mean particularly with the want to be out wondering i must say when i look at the two of them the wondering just doesn't bother me at all the other one i think is is considerably more problematic but we weren't on the spot so that's what i was asking about things that would might go to overall strategy ok go go ahead so again i'd just like to go back to the fact that tribal council did not take any action here when faced with a particularly juror phantom morris answer that we would argue very would require a presumption of bias there was an opinion that had been formed based on pretrial publicity that was stated in their jury questionnaire and we have any because it is you said that you have a piece of paper that you know asks you to focus and asks you what have you formed an opinion or from this what do you think that he read that again because it sounded like based on this what do you think but i don't want to say that because you're based on your exposure to these allegations on t v in the newspaper in elsewhere do you think is guilty ok so that i mean that that's that doesn't put you in the mind of a drawer who is focusing on i'm supposed to listen to the evidence you know it's like calling on you in class what do you think i'd be interested is there any evidence about the generality of these questionnaires for example you know out of one hundred people sixty of them said yes and half of those were seated on the jury or is that nobody said yes except this one person what we have seen in the record this was the only instance of a juror being seated who said yes whether there were other questionnaires out there i don't know well when you say that's the only one you know that's the only one that we've got put in the record is correct ok and i simply know you know there that where a potential juror has formed an opinion there is a presumption of bias and that presumption can be overcome through rehabilitation through you know them to give an answer that in the jury context they're not supposed to give but in the question of you know what do you think you think the packers going to win do you think trump with should have been president whatever it's prodding them to give a top of their head answer so do as far as you know is that i asked repeatedly and in ohio as a questionnaire i don't know if it's asked repeatedly certainly from the record it's clear that these questions were specifically asked because of the do you have any k is there any case were that kind of a question an answer is discussed because you see there the reason i'm pressing this is have you formed an opinion kind of puts you in the mind of oh i'm supposed to be fair you know well i haven't formed a real opinion as opposed to well what do you think i have not seen a case that addresses this kind of qu would then direct the court to the next question in the questionnaire though please explain your answer what has been presented seems to indicate probability of guilt so you know again this jurf it more and that's and that's a different answer than the answer seemed probable he was involved yes question sixty two which was what impressions did it leave in your mind the response was seemed probable he was involved literally but literally it's not that problematic just sounds like that's the direction might be going i think you know stepping back from that yes i think the issue and the problem here is you are faced with a juror who saw publicist this where there was widespread public city of this case there was a gag order ten of the twelve said they had seen some publicity wrecked and we now have a juror saying i saw a publicist and based on that i think gerald hand is guilty that's an answer and say that well do you think gerald bob hand is guilty the answer is yes so i would submit that is an opinion that is opinion that warrants a presumption of bias was this juror at the end of the day a biased juror sitting on the jury i don't think any of us can answer it because no inquiry was done but what the law does tell us is in the sense tense there needs to be some type of searching inquiry to overcome that presumption let me mention judge judge beckwith opinion below calls it a small group of seven and that  is there anything you may have read seen to the judge then said is there anything you may have seen read seen or heard that cause you to form an opinion and they all said no and can you produce anybody have any concerns so i suppose what you're saying is he could said well ma'am what about your questionnaire is not contrary to what you just said or i think even more direct he could have said we have an issue with this potential juror either seeking death and they got into you know back and forth about i believe the new testament not the old well gee maybe that sounds pretty good you know i'd like a new testament jury or rather the old testament juror or my response to that is that had not that was not specific to mr hand there still had never been an inquiry as to how firm was this opinion that no i understand that it's a different part but it's eliciting useful information is not effective in terms of overcoming a presumption because in a group potential jurors are much less likely to admit a bias as the court have any more questions you know what i take to be your opposing counsel response to this talks about crisis you have to show prejudice as well we would tara was a situation where there was a potential bias indicated based on the jurors had already ruled on the same issues in another case is that correct but they had never different from saying based on the t would think he's guilty but it's different from having been on a jury that found those facts well anyway and i would use a thing which will maybe it's not is there anything else of support i think you have to go and look at some of the supreme court authority that's out there that says where an opinion is formed a juror can't be impartial and here i would argue an opinion particularly with respect to to have doesn't matter whether you think he's made the inquiry or not why i think it does because it might have been about the harm that comes from the failure to interrogate here's the harm i would state ok there was no or yes there was no inquiry made i submit there was a presumption of bias created by these answers if that presumption of bias is not overcome and if there is no rehabilitation of that juror and their jurist sat on the jury under the reasoning of quinn taro we would submit that prejudice is present and get a given all of the other answers that were asked and given what would have been required to quote overcome the presumption because your your statement a minute ago was simply if an opinion is formed there's a presumption of bias any kind of opinion at any time for any reason i know i think the law should state that it depends on the strength of that opinion how deep is that opinion held and that's why the individual inquiry is so important to understand how strong record created that would have overcome that bias in your view the questions that were asked in the answers that were given can you rely on the evidence can you put aside concerns etc none of that's good enough i don't see what would have been good enough  couldn't have been rehabilitated without individual questioning outside the presence of the others which would have had to have been permitted by the judge that is under the circumstances it was presented the lawyer if he had asked more would have been in the group and again he didn't do anything i mean here we're not talking about this lawyer having done something with respect to these questions and the juror record this these lawyers took no action you may want to hit your second point  i much time on that but the second point relates to the medication that was presented during the sentencing and we would argue that counsel trial counsel was ineffective for put failing to put on any effective mitigation there was substantial substantial mitigate potential mitigation in the record what's your what's your best point all that i mean read the stuff about the no anti social personality i read the stuff about some of the siblings  read some of the stuff about you know he was nice to his boy scout troop kind of what's what's your best shot our best shot the district court held that dr davis the expert put on a comprehensive description  statement regarding these background factors i've looked at that statement it's one page of transcript a very sanitized truncated version it doesn't prevent refer to any abuse that may have occurred versus bob hand the entire focus of that sentencing the last eighty seven pages if you look at the actual testimony that was put in three witnesses three witnesses the total approximately twelve pages of transcript also i would direct the eighty seven pages is the whole hearing and the defense case was twelve pages or the eighty seven pages as the whole defense case eighty seven pages is the whole hearing the defense put on three witnesses the first witness was dr davis i don't have the total number of his pages but with three we can find that but with respect to his statements regarding this very dysfunctional background the petitioner hand had it  one page of transcript basically then you might say in all of these cases you can go the you can go the poor me route or you can go the salvageable route and you're saying that they didn't  go they didn't use everything they had on the poor me route the infected news very little used very little of it i think that's fair i mean you know yes i read the part about the all the children had different fathers and there was abuse in the family and so on and clearly a that was not presented so that sort of the basic shop yes and i think i'd go step farther and say there's a real question here whether trial counsel simply did not put that case on because trial counsel thought it wouldn't do any good and this court has step said in austin v bell that's not effective trial strategy as a meza posed to he's a nice guy he can be salvagable he'll be good he can be a mentor do is to his children he can so on i mean deference well i'm sorry yes it is given that it is at a difference that for that issue i'm just trying to figure what job is here well it would be it was there in any reasonable application here and here i would argue yes there was an unreasonable application of distinction to the earlier he you were talking about where you are saying that we have the noble review because the state court never reached cracks are yes there is there is review here that any further question may please the court assistant attorney general charles will be arguing on behalf of the warden your honour's i like the first start with the procedural history of the ineffective assistance of counsel claim with respect to the void dear concerning the two jurors this you just was found to be race judicata when raised for the first time on post conviction the court concluding that based on the record it could have been raised on direct appeal and was not however a claim was also presented ineffective assistance of appellate counsel and summary unexplained denial by the supreme court nevertheless subject to different so in essence then what we're really talking about here is in looking at the underlying claim of of juror or alleged your bias we're actually looking now at it two additional layers which must be addressed of deference here we have we must have first we must defer to the state oh how supreme court's determination that this claim be phrased would would would not have we would rely on well established supreme court precedent which indicates that unless there is there is a presumption even in an unexplained decision was unexplained but that there's nothing here to overcome that counsel and in that case the ohio supreme court explicitly denied it based on the failure to comply with the time when this rule so that would seem to indicate that the springboard  knows it has a pet has has a practice if it's denying the application based on timeliness or procedural rule it will tell us that but in any event we take a look at it this case so what we have here is this is a reasonable what this comes down to is is there a reasonable probability of a different result meaning and that is that the prejudice standard here is there a reasonable probability that had appell counsel raised on direct appeal trial counsel's alleged ineffectiveness that it would have succeeded the appeal would have been won because the court would have held  were there were there was prejudice there was there was bias which would require overturning the overturning the conviction your honor we would submit that based on the findings of the district court that that's highly unlikely the court made explicit findings on this with respect to the type of volunteer that was conducted and the jury questionnaires now the jury questionnaires were in the record and i thought it was interesting myself that the questionnaire because one point there was a lot of publicity in this case i thought that was pretty interesting now as far as i can tell from reading the record these questions what the my point is that i guess my point is that there's unlike some cases where there might be a dispute as to the nature or the degree of publicity involved in a case in this case there was no dispute yes there was a great deal of pretrial publicity everybody understood that and i can i guess it's a matter of somewhat common sense is that a case involving a person accused of murdering two people in the course of a conspiracy  notes here i thought this would come up and so i'd make some notes with specifically with respect to the findings that were made by that that were made by the district court and that the district  held that with respect to the juror re that the jury questionnaire asked if they had seen or heard anything about the case and if so quote what impression did the article leave in your mind and the jury stated that she had seen a local newspaper article in april two thousand and three which had left her wondering now she also said hell ever on the on the questionnaire that she answered questions to indicate that she had no opinion on whether he was guilty but she could put the article out of her mind and could follow the court's instructions and and i have the question here that's what i'm referring to finish more stated in her question there that she had seen articles and news reports about the case two or three times which left her with the impression then hand was probably involved in the murder and was guilty but she also said it in her questionnaire that she would be able to put that information out of her mind and have a deck decision and base a decision on the evidence in the court instructions that she would have no problem following instructions to avoid the news media during the trial like a good point can you tell me where yes that is i've got it down is the questionnaire for juror four fifty that's there are multiple times there's a different well this is what i thought i found a little bit of problem myself is that the questionnaires i couldn't find any jurors name on them so i had to go back through the transcript and kind of piece together which juror but from my reading of the transcript that indicated to me that that was juror family or that that was her question here especially with respect to the because it did say that you know she had formed an opinion i mean that that she was the juror who said you know can you put the information you are reading from beckwith's opinion at page forty eight i was following word for word and the statement she also stated that she was able to put that information out of her mind must be an answer to some question on the questionnaire yeah i've got that it and maybe i got the wrong numbers but i've got that page id's number nine to five six through nine to five nine that's the whole that's the whole thing at the whole questionnaire let me sort of asking in the questionnaires is there a question that says can you put information out of your mind if you go on to say if selected as a juror on this case the court would order you not to read or listen to or want any accounts of this case in television except or where you have any difficulty following this or kno it what about about if you have what about if she would be able to put the information out of her mind and base a decision on the evidence what about that question yeah this is a previous one if you have been exposed to media coverage in this case will you be able to put any at all fairly on their own information out of your mind and base your decision soley on the evidence presented to the court and the instructions of law given by the court and that's what her point was that clear enough that the person has decided that case that's prejudice and it's just something that might make you think that there's a problem then it's not necessarily  opinions which would be favorable to the defense now remember here we're talking about ineffective assistance of counsel so is it reasonable to think that a lawyer might decide that even though a witness has given equivocal priest based on the pretrial publicity that this juror nevertheless has given answers which indicates that the jury might be a good juror for sentencing then if they're if that's a reasonable that's a reasonable  proposition that a good trial attorney could come to and and also when you're talking about an appellate attorney if the appellate attorney is confronted with a record in which the trial attorney apparently elected not to ask any follow up questions the juror also gave him responses which might be conceivably thought of as being favorable to the three that if we get to this issue pass the proce because if this court concludes that the appellate attorney was ineffective for not raising the claim and therefore your house supreme court was unreasonable in concluding otherwise then the court would have had to object obviously concluded that yes the trial counsel was ineffective and there was prejudice because i don't see how you could possibly ever find ineffective assistance of counsel here unless you also thought that the underlying issue the procedural fault issue and then if you get past that there's a merits issue that you're seeing as you're seeming to say that to get past the procedural default you've got to find prejudice and once you've found prejudice you've decided the ultimate issue on the merits that pretty much and that's not unusual but that happens and i know that this court means that we have to look at the at the at the merits prong of the ineffective assistance of counsel issue using at the difference yes and at least with respect to the  resolved the procedural default issue by saying there by hypothetically and in a different because similar case you could say there was no procedural default because a because material from outside the record was integral to the  issue and you would have to say anything about the merits you could just say it wasn't procedurally defaulted couldn't you in some case yes you could and but absent you ation then you would go to the merits and the merits would be to no yes not yes it would be no you're right your argument here is that there's no procedural default not because it may be partly because of the merits issue but partly because they saying they were saying it that there was stuff that was outside the record that needed to be addressed and that conviction it was more in my mind ask the scope of review question well i agree with you i'm paul judge and if i'm not making it clear yes i did mean to suggest that under no circumstances would you could you end up with you know  we were to decide that this case was not procedurally defaulted because of this out of the record in the record dispute and then we got to the merits would the merits be reviewed biased and of zero or not in the event that in ye layers that sometimes one has to get through what is your short answer on what was outside the record or why you think it wasn't really outside my understanding is it was simply more more more evidence that there was publicity in the case newspaper articles that was not disputed the degree of pretrial publicity was not disputed also your honour's the whole gist of this case is the record tells i mean you heard counsel say it herself the record shows that there was bias here or pension and buys well if the record shows that there was a presumption of bias and counsel should have inquired further then there was no under ohio law it had to be raised on direct appeal was not ineffective and that unexplained decision is on the appeal of the state post conviction now your honor that it what the way this works in ohio is that this case was directly appealed to the the one you're relying on which you say yes as an unexplained decision nevertheless it's the right one to look at and give deference to yes the ohio supreme court decision all in the appeal of the twenty six b this issue again has to has to go overcome three three barriers here he has to overcome a record which does indicate that at least there was some  here he has to overlook a record which shows that there were some things which indicated the jury might have been positive to the to the defense and he also has to overcome the presumption that tr counsel was effective because that presumption would apply when a claim was raised on direct appeal just like applies every other every other place now you also take a look at the district court found that the trial judge  did conduct a small group volodymyr seven or eight jurors at a time and that these two jurors were apparently were in the same group the trial judge also asked the jurors if they  decide this case not on the media not what you saw and heard but what is presented to this court and three times the records discloses that three times there was negative responses so probably would not have succeeded on appeal and there again is that that's the real real real guts of this case i would i would say i mean procedural default at some excellent questions about procedural default but appellate in effect this claims have said look we just take a look at the underlying claim for the for the purpose of well we'll look at the merits for the purposes of evaluating whether it was a clearly stronger claim and of course that's the that's the constitutional standard can you really say that this claim was was was clearly stronger than the other claims that were presented a direct appeal they could reasonably conclude that we don't think so we don't think this claim was clearly stronger and and to a certain extent that does take a look at the merits because obviously to make that conclusion yet to look at the merits of the claim to some extent you know you say making the judgment about is clearly stronger not clearly stronger and so on and are you are you rolling that into the unexplained decision of the ohio supreme court that that would have been an adequate and probable basis yes yes and again a again one of the classic classic examples of tactical decision making as a trial attorney what questions do you ask you know it's interesting i thought about this last night i said it's interesting that when you ask a question you also give information out so when you ask a jerk questions sometimes you're conveying something to the juror so you got to be careful i thought about this question here i thought it was very interesting apparently that both sides agreed to these this is not i don't think this is common in ohio apparently both sides had input into the questionnaire i thought to myself that was interesting you give a jury a question where you question your use a lot of publicity on this case i mean you're telling the jersey something prospective jurors   i found i must say the headings in your brief or obscure they just say argument number one is that the second ground for relief doesn't really human number two is that the ninth round doesn't want to leave and number three that the eight round doesn't work really which requires us to go to some third place to figure out what the structure of your argument is and then in a dispute where your opposing counsel has arranged the arguments in a completely different order from the way you're arranging them it would be useful to me and i don't speak for my colleagues who would be useful to me if these headings had something to do i've been doing this for a while and i still make mistakes i mean i know you know i mean that's that's the way sometimes you think you start think you know quite a lot and you find out that you know nothing of as much as you think you do but  about a case involving cold blooded calculated murder for money and faced with that and faced with a claim of innocence i mean not guilty couns given the dilemma of vigorously arguing reasonable doubt and then when the jury had obviously rejected that coming up with a theory of mitigation which salvageable but he presented significant evidence in that regard he presented the psychologist who had a considerable background working for the corrections departments and who had a lot of experience in dealing with he looked at the the background there was extensive investigation and he did as the district court found he did indicate that yes there were mitigate there were some circumstances in mr hans  background that he considered he considered that mr hanson father divorced his mother that he had there was abusive relationship there that the family had been reported to to check children's services or the family services department that they had been taken away for a certain period of time there or there was there was evidence there that that mr hans childhood his background was not perfect but there was also you say there was that evidence was that davidson did present some of that evidence but just didn't make as big a deal about it it was a saying that davidson knew that but he didn't say it or he said it your honor he said it i mean he was very thorough in reviewing what i'm talking about what he reviewed what he was asked to review and amy made the point that you know obviously you've got to look at everything you've got to go to really get involved and look at the background so forth had qualities which would make him a person who would be to take it as compared to many death penalty defendants we've seen other than his crimes he had  a relatively successful life i mean he had to have paid the premiums on these insurance policies and that sort of thing which would go to the salvageable you know he seems to be a useful human being aside from his crimes yes and that that  you emphasize how rotten his background is the more you undercut that yes yes this is definitely a quote i mean i guess is a case where a strategy was chosen and no anyone reading this record would we could see this this was a strategic choice to courts the courts state courts were reasonable the extent that they were defaulted in there was no education the district judge nevertheless concluded rightly that there was no basis for his corpus relief and with that we would ask you to affirm the judgment of the district court rebuttal the first topic i'd like to reference regards the pretrial strategy and specifically any notion that there was any strategic call here made by either trial counsel or direct appeal coun not including this claim in fact both the lead counsel in this case terry sherman and appellate counsel were deposed in this case there was an evidentiary hearing and with respect to mr commentary regarding this i'd like to read ok and sixty two says seemed he probably was involved in sixty three says yes she thinks guilty yes that would have caused me major concern and you're telling me  three four correct what you recall correct and so this is him saying that he would be concerned by those questions yes so let me start on eight three four this involves is this the type of answer that you would have wanted to follow up with this juror about yeah i think we would have asked her on for our dire to goes on to state at eight three five yeah i probably wouldn't want that  that's with respect to jury rig for this is the same guy who was the trial attorney who was in the room did not ask any questions but and this is what how many years later six five years later you know nine so about six does we do get at that question and sixty two seems he probably was involved in sixty three says yes she thinks he's guilty answer from mr sherman yes ok again these would have caused answer that would have caused me major concern and you're telling me she's on the jury ok you know i don't know what she said but that's not good yes ok the question ok that's not good that she thinks she's guilty before she's come in the courtroom answer no no that's not good no question ok and again these are answers that you would have wanted to follow up with her in those well i would think that yeah if we didn't we were remiss so we should've so that is in this record is the direct testimony of mr shiner we get that if we didn't we were remiss or act so when the counsel for the same guy gets on seven years later and says if we didn't we were remiss that he gets a reversal for his client i think the question is one was there any strategy here no you do have trial counsel saying i should have followed up on this this was a major concern i did not this was before judge beckwith this was when the case was pending in the district court correct it was an evidentiary hearing we were granted the right to take that discussed by either side before the judge in terms of you find them credible that sort of thing we have a reference in our briefing certainly here about that this was a critical mistake and i'm pretty certain there are references below to say anything you heard just recorded no there were no references to any of these trial transcripts and you know i  i'm referring to you say now to me this trial transcript referring to the trial before judge beckwith i'm just asking whether this seemed to be a point that she consider or got into her opinion we had a hearing before a judge murs there was no hearing before a judge back within this this language is coming from the deposition of mr you so so was there part of the argument before judge merz was my gosh if the counsel says he's ineffective he's got to be ineffective there was no argument there was simply an evidentiary hearing and so that if we look at judge mirza's opinion would we report recommendation i guess would we see anything about how strong that statement is no you would i'd also like to refer the court to the deposition of stephen farrell who is one of the lead attorneys on the direct appeal here says reference as we mentioned th the the record was supplemented with the jury questionnaires here is what mr farrel said it was supplemented is that because they were in the state court record it's my understanding that for whatever reason they weren't in the record that was on appeal here's what he mr farrel says regarding the jury questionnaires and he's referring to a younger attorney who worked on this case i recall sitting down with wendy i know that when the jury questionnaires came  in giving them to wendy right away in our brief right away and our brief us files were not under a tight deadline so they filed their brief they then get these questionnaires and the question becomes do they file a supplemental brief but obviously if something in here we need to see what we can do and see if we can file a motion for a supplemental very he then says she comes back and says i don't see anything in them he then goes on and i'll cite the courts to page idea  levon ninety six would you agree with me that if a juror expects pressed a potential feeling of guilt prior to the trial that that was a concern yes yes and i would expect follow up questions of trial  on that issue and had that process not occurred would that then create a potential ineffective assistance of counsel claim on appeal yes and especially in this case where i knew sitting a somebody who lived in columbus at that time that this was a big case and my weren't quite the same that is a supposed if i were if i thought i would get a good answer i would have asked and after reading what the judge said in the answer given you would you still have been very concerned why i haven't tried a capital case criminal case so i don't know but i'm through to you that a defense counsel even when you're just arguing reasonable doubt would kind of have some sort of theory of what might have happened other than the story that the prosecutors are telling at least some sort of possibility in the juror's mind that something else happened does that make sense i mean that seems to be like you would be wanting that who would rise and i'm just having trouble seeing what that would have been here with respect to question doesn't make sense and i think you know my sense is trial counsel struggled with it and when you read mr sherman step is issue and i think it's clear that his view was they're just going to have to attack the witnesses but if mr hand is against no alternative it's a suggestion or it was self defense that he happened to just come in and that's what i'm asking why he was in even in there shooting i mean it was self defense after wealth went in and killed his wife what was the victim instead of the other person who lived in the house he said i'm saying i do even though there's no evidence whatsoever you say but it's reasonable to doubt maybe that did happen but it's kind of this is somebody he knew who was in there killing his  or any kind of theory for why that would have any kind of wild speculation about why that would have happened other than the reasons that support the verdict i think the closest i could come in reviewing the record is welch came in to try know by some standards that a man of some means right i mean he had enough money to have a house and pay insurance premiums and so forth act ok anything else judges thank you thank you that case will be