process has changed significantly over the years but at at that i mean that time at that time i believe there was an application to fill out that you were you could get appointed to felony cases and once you were on had filled out that application and been approved for the contract system you could be appointed to cases that i'm here at the time most of the death penalty cases i believe were handled by the public defender sometimes they did it your honor but not in all cases i think in this case mr running it goes case was mr and i guess this first death penalty case but he did have a second one shortly thereafter and that  due to martinez vs ryan and the effect that it had on some of mr running eagles to fall did i see claims that had been previously found a faulted by the district court in this case if the court agrees i'd like to focus on two main issues today first the district courts finding that martinez does not apply to cases like rows of mr running you go where the appellate and post conviction process took place a little bit differently in the late eighty's and early ninety's and second his i had planned to unless the court has questions if you have questions i think happy to answer them ok at first regarding the finding that martinez doesn't apply to cases like mr running eagles i am looking at the big picture here and this is a complicated case with a complicated procedural history and i really think of an important focus here is the purpose of martinez and trevino and the supreme court was very clear in deciding these cases that the the underlying principle was the right to counsel and that there had to be a way for petitioners like mr reiman eagle when there was a proceeding which was their only opportunity to raise a certain claim that they either had to have a constitutional right to effective assistance  or an equitable right is here there's nothing that's any different about this case than the other cases where the united states supreme court has the right talking about the unique arizona procedure how they stay  it does apply but i don't mind if the other judges feel the same way i wouldn't want to use waste your time on that when there's other things to do i agree with  let's skip over that i'd be happy to and thank you i appreciate the opportunity to talk about the other claim and so again what i what other the claim i think that i would like to focus on if the court agrees would be the ineffectiveness of mr reiman eagles counsel at his sentencing and of course there's two steps to that there is first the ineffectiveness of his post conviction counsel john n t o in not raising this claim and then second the underlying ineffectiveness of mr running he goes to trial it's it is clear from the record in this case that mr and provided deficient performance in this case when you look at what was done during the post conviction proceeding mr antonio received funding for an investigator but never contacted her did not have the investigator do any work on the case he mentioned in a pleading that he needed a guilt phase investigator which he never hired and he did receive a limited amount of funding for mental health expert the mental health expert reviewed some documents told him that he needed additional funding the trial court wouldn't provide that an additional funding and that was the end of that issue this mr ancho did not do any kind of investigation outside the record as far as any other factors in this case he did not speak to any of mr running eagles friends and family members that he did not attempt to obtain any records he did not do anything in investigating that the mitigation in this case beyond the mere retention of that mental health expert that was the only thing that was done in this case as far as developing the mitigation that had been done by trial counsel so here that's clearly below the standard of care for these cases it was below the standard of care that what had happened a trial as well so the fact that mr angio did not even attempt to do any of these things and now the fact that once those things have been done and we have discovered the abundant mitigation evidence that was never presented below that is enough to overcome the cause of prejudice finding here for martinez you talk about  says or that let less psychologist finds that the petitioner has a anxiety disorder with quote post traumatic features i don't see that that is a diagnosis of post traumatic stress disorder but i get the word post traumatic features as novel and that's new at that that was never mentioned by the two psychiatrists psychologists who examined him before secondly he says that there was an improper diagnosis of antisocial personality disorder because the  addict reactions of mr running eagle were due to his education not to show emotion rather than what the trial judge found to be sort of a distain for humans  other than himself and third also knew was the notion that native americans or sometimes call indians present missed something your honor i do believe that all three of those things are certainly new and very crucial litigate he says mitigation evidence most importantly of course the fact that the two anti social personality disorder diagnoses were improper and incorrect and relied upon very heavily in the special verdict however when you go back and look at the sentencing memorandum that was filed by counsel the handful of witnesses that were presented at the sentencing proceeding w there were a few mentions of some details such as the alcoholism of mr running it was parents mr running eagles alcoholism some bare mentions about his childhood of abuse and neglect it's the dimensions that were made at sentencing were nowhere close to the amount of evidence and the information that was available and i think you can tell the difference in what was presented to the trial court a mitigation she actually found that none of the other things that had been presented to her constituted medication she did not find any of the information provided by the witnesses coming from the letters gathered by mr running a girl's mother she thought she found none of that to be  was mentioned in the pre sentence reports was a your honor if it was to some extent but it was presented along with incorrect information where the person's report writer talked about things like the fact that ron eagle had an excellent relationship with his mother and father and pre sentence report is not considered mitigation that can be credited to the trial lawyer for presentation for one in one event that mitigation of nation did not come from mr running people's counsel to the pre sentence report writer he obtained it himself and so that is not the same as having an advocate for the defense do that cause officially necessary investigation and development of mitigation evidence to present on behalf of the petitioner the pre sentence report writer is an employee of the court not a member of the defense a similar situation and finds that again that the information in the present report is not attributable to counsel and this is not a trivial kills a bit on the question of whether this evidence is cumulative if the evidence is already in the record doesn't it can be different from whom it came your honor i think it does because again i believe that there is a defense function here that mr running it all had the right to have his lawyer present actual evidence of the mitigating qualitative difference is is extreme in this case i think when you look at a pre sentence report that says you know that mr rendell had a good childhood or he had a good relationship with his parents for the most part and you look at the abuse of a childhood how's that different from what you're presenting now because of the qualitative difference in the evidence your honor which i think that's what he's trying to get what is the quality to the core of the qualitative difference here is when you look at the individual facts in support of that allegation this is not a case where you can just say mr ranney you all had it a dysfunctional childhood and have that be the end of the matter mr running eagle grew up in a stream neglect and poverty he did not have food on the table a majority of the time he was surrounded by adults who were dysfunctional abusive i think he himself witnessed numerous incidents of domestic violence he was surrounded constantly by adults that should not have been responsible for the care of a child including bikers who at one point apparently got him high on marijuana when he was just a toddler he was the decorations from the various fact witnesses in this case make all this very clear well the extremely was mentioned in the pre sentence report and so are the facts of the adults around him were bad actors whose fact was father was said to be an alcoholic so why well how is your proffered evidence different didn't do his job it didn't go out and it talked to the parents he said i'd like to have a letter he didn't discuss it any further what was needed in the letter record and obtain further evidence from psychologists and and and other others that would would really tell the story background that's what you're talking about is exactly your honor and the role of defense counsel is to bring out exactly those details and you know that i think previous details i mentioned the role of defense counsel to the questions about documents in the record i don't have that you are cite right in front of me but i can give it to you that we provided from the arizona capital representation project which is a nonprofit agency that assists with capital cases existed at the time of the trial and they contacted mr and does and provided him with a fairly large stack of materials that discussed his duties as capital counsel what he needed to do to investigate mitigation and develop a social history it discussed hiring a mitigation specialist it laid out and investigator her name was gloria castillo and there is a declaration from her in the record as well that says that she did try to get mr any guest to do some mitigation investigation and he did not he did not want to do so he declined  this point because of competing decisions from this court if you look at the decisions that have discussed exactly that issue there is the dietrich decision from the involved court the dickens decision from the court and then the claiborne decision from a panel of th court and that decision actually the petition for rehearing on bond that was filed with stayed pending mckinney and i think has not this day has not yet been lifted so we are not at that point the status of that case is not entirely clear but the claiborne court said that in order to reach the merits of the underlying trial i know that ineffectiveness claim that you were required to show strickland cause and prejudice for the p c r lawyer and i think mr running eagle can do that based on the strength of the underlying plane claim had it been raised would change the outcome of the p c r before you get to the step of deciding whether that underlying claim was also substantial or had some merit really as it's very redundant i mean the idea that you have to show all of that for the initial cause step really eliminates the purpose of the prejudice a step at that point so i certainly do think that the better test is the one that was put forth by the court in dickens about the find it but to get through the martinez  causing prejudice gateway just say that both that counsel was deficient under strickland and that the underlying claim had some merit that it was substantial to then reach the merits of the underlying claim certainly seems to be the most logical but if the court is bound know there's a lot of questions about that if if you do have to show strickland prejudice how would you show it i think that the strickland prejudice then would be if the question is as an unstated by the cleveland court that  the claim had been brought in p c r could reasonably have changed the outcome of the p c r i think when you when you look at this claim that certainly meets that test that i think that just the fact alone of the  iranians and i social personality disorder diagnoses and how heavily they were light on how do we know that that one was erroneous in the one twenty years later was correct it's very clear on i believe when you look at what those doctors had before them to has numerous decisions on this issue and the role of counsel was well defined at the time that counsel is required to provide experts that are evaluating the their defiance with supporting documents and background information and in this case dr bayliss had nothing before him he only had his interview that he conducted with mr running up and dr enos had only police reports that he had been given by the prosecutor and not by defense counsel neither one of them had the benefit of any kind of childhood history or medical records which in this case are voluminous they didn't have school records employment records information about his social history his juvenile record they didn't have any of the things that are necessary to make an informed decision about diagnoses and a defendant's mental health and that's simply deficient performance and that is not a thing that is acceptable under the standards for capital counsel so certainly that calls into question that fact alone calls into question those two diagnoses but the fact that every doctor who has seen him sense has clearly repudiated that finding when they have had the benefit of the additional information i think is persuasive  crime against running a go heidi i think you need to deal with that in your honor i i don't disagree i do think that the trial judge especially found a vast difference in the conduct of the two at the time of of the special verdict but i think there are some things that do go if you go against that finding for one it was it was testified to a trial by mr anton and discussed by the medical examiner that cory children had actually struck the first blow by hitting be consistent with the crime but was not found to be the actual murder weapon so i'm not sure i would say that it was undisputed but certainly that was the evidence that was put forth a trial and that the trial court the mound ok so we're going to for it all to the facts found by the state for the high state core which we incorporated in the last opinion we wrote and i absolutely honor and i'm not suggesting that again i agree that the evidence at the trial certainly did indicate especially to the trial judge that mr running eagle was the actual killer as far as committing the stabbing but i think when you look at the contemporaneous conduct of mr children who was also involved in committing violence was also involved in the attack on the victims even if he wasn't as as found by the trial judge who had been the actual killer he was very intimately involved in this case and in addition mr children what was the the of the two defendants he was the one that had a violent history he had had numerous prior a set of several prior convictions for things that constituted violent conduct had attacked other people and none of that was true of mr running eagle and because mr running eagle did have a very similar history growing up to mr children and because mr children's conduct did indicate that he was if nothing else a major participant in this crime i don't think the difference in who actually eat did the stabbing would have been enough to say that there is that there is not a reasonable possibility that had the trial judge had all the mitigation evidence that has been presented to this court in the court below regarding mr running legal and his conduct that he the outcome of the sentencing could not have been different claim fifteen and a haven is proceeding and is presented as counsel and shows an effect of both on appeal and during the p c r proceeding and that was raised they got to see a way on it and they did not raise that to this core previous on argument by cap by prosecutor so they weren't bad issues i mean race three out of four issues that were raised by the federal public defender to this court on the prior appeal so when you look at whether or not answer was was deficient you have to look at presented from family members from reverence from people that running all help from the scottsdale community calling to tell us we conclude that running eagles council with first to look at what was presented and what could have been presented and i think that's pretty clear from the record what was present and what was could've been presented and secondly look at the aggravation was ironing circumstance that exist in the case in this think you have to look about that was a possible rebuttal that the state would have presented if different mitigating evidence were present been presented and then you look at the overall effect of the evidence was it came much as i think judge bad as questions deseret children's desperation for instance and maybe it's but you know it did come out that he was poor he was beat up getting bullied had health problems he moved around a lot his parents for alcoholics so i don't think  was a leader and i think it's clear because it was his car he was driving around he was looking for parts for his car he organized the burglaries and another thing when i said he he just wasn't lacking is as evidence that you have native americans are don't show their emotions but and this case for shows and oceans he was laughing after the murders and he was bragging to this girlfriend let me get these people full force evidence that wall proffered now of a traumatic event which would be causally related to the condition of p t s d question number one number two is there any diagnosis of  ryan that this kind of equivocal p t s d later evidence really isn't doesn't add much if it's even a diagnosis of p t s d i mean i think it's and dr heller kind of says that he says i think you have to look at mr running or a particular was he stoic you know he laughs you know he laughed about after the murder and well you know that's kind of a crazy reaction for someone to laugh after her well it's crazy it's not crazy counsel didn't have the nerve versus are now asking some of those courts cases counsel can reasonably rely on the contemporaneous findings which tend to be more accurate than later findings that there wasn't any any kind of mental health evidence that would have really helped  i think the but this case but this is fame court has issued a controlling on this case where you look at what counsel dad now whether he was a corporate lawyer who had his first case i mean the supreme court said every lawyer the first case mr simon is a good lawyer but he had a lot more to to get a writ well those are barriers to the extent they're various are created by the supreme court and that stuff one point i'd like to move on to is that the argument that because someone's applying by the courts are considered less would consider them from being a more neutral source would have given them or more weight so it was a gamble and the path but the truth i mean this is what the experts thought that he didn't have any major had no health issues raised a very intelligent young man decision so it seems to be the general rule of the circuit at this time they've been on bankrolling on that but that's claiborne clarified what was unfair and it does require a showing of prejudice she's a fair trial you make sure they got a cop and a lawyer but take a look when they're appointed by the state someone who's never tried a first degree murder case before you can handle if you're appointed before you handle a death penalty case you've got to be very qualified you have to have to be part of one of our panels for for a significant period of time show that you're a good trial lawyer show that you've had experience and death penalty cases and you're qualified to handle a death but like you know that's the someone before oh i sorry i meant to say this before you say yes i'm sorry i noticed in preparing for this argument that the claiborne decision came out six days prior to a decision by the dickens on bank panel that the opinion would stand despite the fact that mr dickinson passed away and i am not sure if you that the court remembers the situation in that case but once the on bank decision came out mr dickens unfortunately committed suicide a few days later and respondents filed a motion in that case to vacate the on bond decision based on the death of the petitioner and that motion was pending for a little while the claim or decision came out while that motion was still pending and i believe five days later on backcourt in dickens denied the motion and set stated in the order denying that motion that the one of the reasons why it was being denied was that future panels of the court should be guided by in that case that you vacating the opinion after all the work that had been put in would deny the benefit of that analysis to future petitioners and that is something i do think is notable because of the fact that at the time the claiborne opinion was written and issued deficient before performance could not have been deficient because several of the claims that were raised by him were the same as those litigated by us in the prior proceedings but of course that's because the claims that were raised by him were the ones that were not procedurally defaulted in the earlier proceedings so that wasn't so much a comment on how wonderful nature of the claims he raise as much as it was what we were left with as a result of if you claims that were properly raised in the first post conviction petition and second of all case that could have been presented it included the fact that the petitioner had what they called a propensity for violence and a severe criminal history that's not the situation in this case the evidence that should have been presented to the sense in court is not at all the double edge sword type of mitigation that it was  paragraphs to that order and some of the paragraphs to deny the claims alternatively and say first they were precluded and alternatively they were not color and with regard to the sentencing i see claim that is not what happened the court said even assuming that this claim these claims are colorable they're precluded so it was a very there was no actual finding made that the claims were not tolerable unlike the other claims discus