so we just have one matter on for argument today and that is richard clarke versus kevin chappelle case number one for dash ninety nine zero five and each side has thirty minutes and i will basically keep you to your thirty minutes however i say we know that there's a lot of issues and so as long as the court is asking you questions i want to make sure that my colleagues have every opportunity to ask questions you may continue speaking and i know counsel for petitioner you will tell me what your aspiration is in terms of reserving time for rebuttal but what i will tell you just if we continue to use your time just continue to answer questions and i will give you some time for rebuttal so we're ready to proceed thank you please the court john grilling on behalf of petitioner richard clarke i wanted to focus on three major issues in this case the germans conduct issue the council ineffectiveness of the  misconduct issue i think maybe in the order that you've listed i think you've got a good order listed and so the question that i have on that is we have our case of good boy correct that's correct and  cliff obviously the juror juror barnes i guess or i don't know for supposed to say the name but anyway spoke to it was learned somehow nine years later that he had contacted his minister during deliberations i think was it during the guilt phase prior to reaching the penalty phase and it does it reflect on the record how barnes came to light oh no i didn't see it well generally that there is some sort of that you're not supposed to dive into the actual deliberations if they give you access to the juries cracked there's no doubt specific prescription on what you can and can't interview a juror about the jurors in california are free to talk about whatever they want to talk about to whomever they want to talk about there are cases in which there are restrictions but i wasn't a juror and she had contact no no no this is wh have to go to the court you have to request the name and addresses to people right you don't necessarily get them without the permission of the court actually that's that's not correct it is correct currently in california for a large number of cases they have  of orders on them which require you to do that this is not a case that had a terrible order on it and i think that that's supposed to be an individual determination by the by the trial judge as to what the what the requirements are going to be ok so now i guess but i guess just moving quickly in to sort of exactly what happened but it's my understanding i think that district court commented in this time i think that the a g s as making some sort of contention advice helpful and we do have a dispute about whether or not that can be considered under six of six b but the rest of it there's no dispute as to that ok so he contacted a third person which was this minister in fact is mr i went through the record over the weekend five times throughout the guilt phase the jury was a given specific instructions not to do this one hundred four times they were reminded of it during the guilt phase so he he clearly violated his responsibilities  if a court were to find and this is i guess you know we're not under at the here so if i were i'm just stating that that that would be your argument so we're doing this to know anyway so at the first staff there's still the contact would have to rise to the level that sat there to get the presumption of prejudice that's correct and if it didn't but then that's the end of the inquiry right then and that's correct and then we don't have all the arguments about crack of that but if it gets to that level then i'm assuming that's your position that could do i would require that if they remanded for an evidentiary harry well you know i think that's the that's the real question in this argument whether or not there should be a rem contact with a minister you know it was hidden until well after the trial i concluded and there's no transcript of an interview with him of any kind not to my knowledge no and then in terms of the district court's rulings on this issue i  do you think that people probably talk to their spouses even though the judges say that do you think that that people probably talk to people that we don't know about i know from personal experience so if someone if we find out ten years later that someone talked to their spouse then just is and the spouse you put a declaration and said oh yeah he came home and he was you know saying it was really hard and he did say you know what is that is that does that just that meet the first level of you know probably not you know you're mean i would have there was a lot of a lot of the details but you know i don't think we have a case or anything like that i mean this is a mean well but this this case isn't like a doorway to doorway i don't know what that was thinking giving by text you know advice i mean it's hard for me to imagine and then it was going back in the jury room i mean those are very aggravated facts you're not these facts are distinguishable from a good boy it's not reading the bible questions in good boy it was not known exactly what the text messages were and so there was an avid and sherry hearing to to develop more facts in the case hearing before well responding has raised an issue about whether it was raised with the other jurors that seems to be well but that's inconsistent with he just said he concealed it well that's correct i believe you can seal that respond it has has de mint's from all the other jurors i got statements from several of the jurors though in the record but nothing about this issue whether or not somebody mentioned consulting with his minister about it we do have a statement from a juror that she was the old holdout that she was criticized of any remit is for the state to come forward evidence that rebuts the presumption of prejudice that we've established well we have all the good boy makes makes some point as saying that the record was not sufficient to determine whether the the contact was harmless and so in the book and thence goes on to say the most relevant evidence would be the actual content of the text messages whereas here we in we do have the jurors statement about what the content of that communication was yes we do yes we do and it meets both criteria nature of relationship nature of the conduct so if we did we have the  relevant evidence then and we i presumably could make the determination ourselves as to whether there was a prejudice or not ever was prejudicial whether or not it raised the presumption it requires this court well the presumption of prejudice when you don't know what the evidence is and then you have an evidentiary hearing to bring out the evidence to determine whether it was in fact prejudicial or not but here apparently we have presumption of prejudice and could do a final the presumption of prejudice based on those facts right because they didn't know what was the content of the communication so in other words when you know there wasn't a contact with an extraneous third party eat a presumption suspect we disagree on that but they must have no reasonable possibility that this influenced the verdict that still does he says he testifies in this declaration i have long believed that anyone who is guilty of murder and convicted of a special reaffirmed a belief that he should not have possessed in the first place and that also hid from everybody that is that was improper for him to to not disclose that to anybody that that was his belief if that is and typical to the construct of the death penalty in california that is absolutely an incorrect assumption on his part and he sought out his minister in order to verify falut aid and approve that assumption and he got that unfortunately from  minister we expect more from a judge but probably it will more than this than from a minister and and that is the nature of the misconduct in this case there's no i don't think it's even a close case on the presumption of prejudice of the misconduct now as  may have stated something falsely on far dear isn't that what you're saying he did state something falsely on volunteer and that was part of the claim of it under burns that was also denied but that's not the crux of the misconduct case so i think that if he had said in his affidavit that i have long believed that if a person is found guilty of first degree murder and a special circumstance is found shrew and i believe further that if the aggravating circuit factors outweigh the medicating factors that they should get the death penalty with that then he would have had a correct statement of the law correct statement is that what you're saying tracing it back your honor but the first part was that if the special circumstances are true then the death penalty is appropriate not necessarily that's not necessarily his his one tear but also by judge's instructions so because this state has not come close to rebutting the presumption of prejudice in this case the only question i believe is whether or not it remain and would be appropriate for them to come forward as in the hall case in the seventh circuit or the bar in this case so what you're saying we should just find the perception and not allow an opportunity to read that and find and advisor the person he seeks moral advice from his minister that the debt at that the death penalty would be appropriate under the facts of this case and when he said confirmed his long held belief what  is the effect of the effect of that is he's been given a moral imprimatur to violate the law well what if that what if the minister i don't have that this person safe and alive but what if he came in and sad i only sad that the bible are being a christian does not prevent you it's not a violation of your christian beliefs to render i  more porton thing of course is what your blood and study was being told and that is why the nature of the conduct itself is so prejudicial it's not necessarily what's being said but it's also the rule is that if a person has an extraneous contact with a third party that's per se prejudicial absolutely not i don't think we have that now what we have what we have here is moral authority on a moral question the heart of the case that's a little different the count i understand your argument as to why we should grant the writ as to the penalty phase i'm not saying i agree with but i understand how you get there as to guilt though i'm having a much harder time getting there can you explain how we get there as to guilt because it occurred in the guilt phase the only way to get to what he's asking the minister about is to find the only way to get to this moral question in his mind that he's now resolved and and cemented is to find guilt and special circumstances and that would be the nature of the guilt a presumption of prejudice as well i've merely not as strong as the penalty phase presumption of presence because the core advice went to the penalty phase but still a violation and one that because it is a t maybe we're going to have to do that but on page nine sixty eight of the opinion and all this kind of frame it for you the court talks about what to look at to determine harmlessness and the court wri once a defendant shows a possibly prejudicial contact the presumption of prejudice attaches in the burden shifts the state to prove the contact was harmless then it goes on to say the state must be but the presumption by point is some evidence contrary to the evidence that estab lished it drawing contrary inferences from the same evidence is not enough poking holes in the juridical well that's what i was going to ask you about so we have this declaration and we've been talking about how the state can possibly on disclosed text messages and they don't know what's in them now a juror declaration that says i had a text messaging with the judge and it talked about you know how we get our lunch as jurors or something like that then maybe that and to a declaration he says where the court looks only do one part of the declaration to include the presumption exists that consults the declaration as a whole to conclude the contract is actually harmless so contemplates looking at with your misconduct and it was a real effort a strong effort to tell everyone how to deal with it i'm so glad we were able to clarify that i mean there always be you know lawyers there's always a but there's always a stuff about the stuff to talk about in the margins a other questions do you want to go on to the plea yes i wanted to go in the p s u in the end the court asked about logan and i think the critical distinction the logan case is that both counsel gave perform gave advice that was not that because so alan is the more experienced capital prosecutor correct that's called an that's correct these are right and he still won that he thought said certain things about i'm i think i've got a chance at second degree murder or not getting our getting out wop right now he said i think we can beat second degree murder he was he was very focused on not getting a walk with richard clarke well ok but but he did didn't have a backup but i still think  i do think that he did have a chance at second degree murder and the recent that i'm just i'm going to sort of lay this out and you can convince me why now i mean obviously the theory as if if the jury believes that he raped her and at some murder that occurred in the process of the rape then you're at first degree right and then you go we're go to the penalty face felony murder but his theory of the case and not that the defendant basically sat as he says different things ok he has he has inconsistent statements to the police it would clearly i think there's a strong case that he did not premeditate this in the sense that this young woman was fifteen years old and he did wasn't he wasn't stalking her she happened to not be able to get a ride and she ended up at the bus depot and so it appears he's got a strong argument that this was a coincidental contact not that he was stalking her not that he said you know i'm following her i'm going to rape her i'm going to do that so whatever we don't know because she's dead we don't know exactly what was said before but she's a fifteen year old that hasn't used terribly good judgment in terms of walking to home by herself at four o'clock in the morning even though and i think she's got in her backpack some wine cooler stuff so you know some would argue you know the so that would lend to the fact that maybe they were drinking before because he does show up with something with the wine cooler as far as and he does part of his defense was it started consensual and then and it went wrong i went into a rage i blanked out any number of things we have a young man that was what eighteen nineteen years old at the time no prior record so you compare trade all of that in the guilt phase you have mental health issues depression he also has used there's evidence of substance abuse and alcohol why is it humanly impossible that a jury wouldn't look at that and say ok it's a chance encounter it started out contents consensual it went bad he freaked out went into his rage which it was part of his defense and so you don't have premeditation your second degree i mean it's not enough for her but i see a theory and i see that that was his theory of the case and i don't you know my years in the courtroom to me it's not totally unbelievable that a jury could look at that situation could be you know unfortunately a little bit judge mental of th the homicide in the course of the rape it absolves the intent issue as to what gas but didn't he say in certain parts that it started out consensual it may have started out consensual but he he said that she was going to report him for rape and he said what are you talking about in the ne then he killed he clearly one statement he says he bombed but is that is there a legal theory out of fat that could be second degree murder a legal theory that i cannot fathom in the facts of this case in one twenty twenty hindsight they didn't buy at a legal theory that he came in that because he didn't even know the evidence that was going to be presented at trial on that very theory he didn't know about the statements that  and he was not aware of one's efforts to develop a therapeutic relationship and i believe it was before the suppression hearing is immediately before the suppression and so so at that point the question is was inconceivable or was the at reasonable determination by counsel that is part of the analysis the analysis actually under loffler and hall is whether or not the advice affected the outcome whether or not his advice  nothing about that in the in the case law but we have pledged that he would have well you could certainly get a declaration that if i'd known that i was going to be found guilty of special circumstance first degree murder and special circumstances and get the death penalty i does and so had suggested something else he would have followed his advice but i didn't see anything from mr clarke saying that that's that's correct i don't think the case laws actually asked us to do that but we have to find we would have to determine that there was a reasonable probability that mr clarke would have taken the plea agreement but for alan's deficient advice is that right correct that's correct and now it's done that's why all of declarations is significant in this regard because he says look if i had known what i what i basically i should have known at the time there was no way i would have asked richard clarke not to take that deal and  we know that the relationship was a longstanding one father figure one as opposed to brown who came on board only weeks before the trial began so from a problematic office that mr clarke i had a lot of difficulties so in terms of we've used a lot of your time ok my proposition unless the panel otherwise have checks i'm ok five more minutes to address that third issue that you wanted to address and then i'll give you five minutes  right in terms of life history the core issue here is that the jury was left with a profound incorrect view of who richard clarke was and it was a series of blunders a mistake but at its core at its core was the life history evidence and mitigation evidence that was not presented either in penalty or to any of the experts i'll give the court some some bullet points here the trial testimony was that his father was expected too much of him and was frustrated with that the mitigation testimony hey b s he started beating richard when he was eight months old and that the those datings continued throughout that period of when the father was with with with the children in the home the testimony a  abusive to that to the mother very unclear one time he beat the mother the mitigation evidence he raped and in front of this children he beat her in front of his children the kids were present testimony at trial he was defiant depressed after his father's death and as a result of his mother's neglect the test mitigation evidence the true mitigation evidence he mutilated himself and electr himself during that time period the testimony in the at the trial was he had certain academic difficulties the true evidence warning standing profound learning disabilities the testimony at trial was the use school the mitigation evidence he could not go to school he was so psychologically disturbed by what was happening in his life he was unable to go to school the antisocial personality diagnosis they  inaccurate it was used extensively by the prosecution the prosecution had no aggravation evidence in this case other than the facts of the crime i just have a question maybe you can as i'm listening to some of it they're so obvious like a difficult choice about that difficult childhood is the sort of threat to use sort of stereotypes with in terms of that it can medicate but sometimes it can make someone look so bad that jurors go the other way and term says that you don't want your caught you don't watch a client to look like a monster that's completely uncontrollable and as far as that goes so because then their fo my state's attorneys but i don't know of any and i've been doing death probably work for thirty five years trial an appeal i don't know any death penalty lawyer that feels that that's a significant danger for their abuse testimony i know death penalty lawyers who present evidence life fifty year history evidence to explain conduct to explain the circumstances to generate sympathy for their client and to make sure the jury has an accurate portrayal of their client at trial and that's not what happened in this case instead we have that he's a future danger as a result of this diagnosis that he lacks re morse things we know that are totally untrue we know that from the interviews of the jail personnel who were there who saw richard clarke at that time we know his subsequent history thirty five years without a single right up on death row we know we know that this is untrue and in accurate portrayal and we know why it happened and and it happened because it deficient performance by counsel counsel who was just throwing things out there not understanding what his evidence was and getting blind settled left or right and labored under a conflict that couldn't cure perhaps the most damaging evidence in penalty which was remorse thank you and actually there is the state in responding to the state havey as claim regarding juror byron's a take provided a declaration that's attached as exhibit one to be in formal response and in that declaration it was paired by an investigator for the state who repented his visit to juror barnes in an interview with him conducted by himself and by doing pastor who was the prosecuting attorney in this case and that declaration on page three says that mr burns told mr castor and myself he had asked the minister how the minister felt about the death penalty issue the minister replied the bible says an eye for an eye and said he did not question the death penalty mr burns also said the minister's statement did not settle the issue the evidence in the case was the main thing that made mr burns decide on the death penalty mr barnes told us that he had not discussed the evidence from the trial with his minister when the declaration was presented to him by clarke's agent he had missed the part that refers to quote the facts of the case close quote also mr byrne said that the talk with the minister came not during the guilt phase but around the time t honor and that's as i said it was attached to the as exhibit one to the state's informal response in the state had these proceedings so this declaration was before the state court and i think there's which moves would have been in front of the state court who was the first one to look at this claim and although this state supreme court denied it with a one line disposition so there is no reason to think that the state court was not looking at all of the evidence including that when deciding that this claim lacked merriment we thought we were looking at all of the other yes your honour's and again that's my apologies for not including not finding out earlier  have to spend all the time looking for it when if it was obviously and it wasn't the petitioners responsibility to call it to the courts attest correction i would have no business that to my now in terms of that obviously i mean it's our responsibility to just decide the case based on the law and what was that before the court so but  there's something that was missing in the argument but i understand your i understood your argument more not just say that you said there were it was an improper contact with the minister you acknowledge that but did you to this court's holding in the doorway seem to have been limited to jury tampering cases and we said this was not that kind of what but you don't really even but you kind of seem to have abandoned that argument here didn't mention that it was limited to that but so all right but the step one what is your analysis under the step one because under under good dorie i mean we're reviewing this to novo under step one if where do we get what your position about the presumption of prejudice i think our position your honor is that we're in a different procedural posture here than we are in good boy and that's part of the problem with trying to apply get away in this instance in that indeed during the state court did not appear to have addressed the claim the district or i'm sorry the state court didn't properly apply rammer that's what this court found and then the district exactly where we are now correct well except your honor that one we don't know that the state court i mean yes we have a did novo review regardless of what the stick were found but we don't know that the state court did not properly apply plyler well under brecht and under frye this court cannot grant habeas relief unless it finds a substantial injuries effect because this is a receipt reaching the court except that we have to make that determination is that true do you agree with that because of the contact with the the minister yes your honor and we've got evidence in this record one we think that even as your honor you get out in i like that case where we don't know what the context was here we have a better feel for what the contact was so if we said there needs to be an evidentiary hearing what additional information would be established through an evidentiary hearing we have his declaration which i from from what you said about the the interview with barnes was just presented to him by the defense counsel but we have a whatever this other document was presuming it was part of the it's part of the record properly before us so we have those two pieces of information what other information could be established an evidentiary hearing with so that state could reach a presumption of prejudice and i'm not sure there is anything else that could be presented your honor and that's what the district court found is that petitioner burden it is at least initially to present a claim  the factual basis for that had not put forth anything that could be established in an evidentiary hearing what about the minister about the other jurors whether if other jurors said that he talked about it in the jury room well presumably if those jurors were aware of that they would have told defense counsel when they were being talked to before that defense counsel could have certainly talked to the minister before ok but that's when it was his burden but if the burden shifts to you then i'm saying what that's not his burden then right if you're under the two step if you find the presumption of prejudice then the burden shores that's correct you're on the if you were to find that under under applying it to outside the jury tampering scenario than you i mean i'm not telling you how to do your job but if you have the presumption at that point and it is that that i'm thinking of things that the state could do if it came to that but if you you know but if you want to say there's nothing else and you want to lie down  and make it you know i can't tell you to do otherwise i don't know what we don't know what's out there and at this point now under we we know what he put in and we know when it's his burden but if there's a presumption that we know that you do what he says then in an evidentiary hearing you've got a burden and error that you're arguing brecht but it's we don't really know clearly whether we can do that or not and whether or not i mean part of the problem your honor is that death penalty and it's prejudicial that's that makes him not impartial so what's your response to that and i think we have conceded that your burden should not have spoken to his his minister there is no question that that but it's a different question right question as he did that's undisputed but to get past step one there has to be some prejudice it's a lot of hype thing and then it gets the presumption of prejudice are you conceding that it's what she asked you oh and i'm sorry i misunderstood the yes and no we're not because the only thing that that that the declaration specifically t us is that the minister told him the bible says and i for not and again why he should not have consulted his minister at all the eye for an eye statement is one that has been addressed by numerous courts over the years numerous times it's a well known verse from the bible it's frequently brought up in these jury misconduct claim instantly juror barnes knew that yes your honor so why would you need to talk to the minister of that's all it raise a credible risk of influencing the fir ticked so a credible risk of influencing the verdict so is there enough in the evidence before us to know one way or the other or what the evidence  hearing be feasible i guess and years you seem to indicate that you don't think there is any evidence out there that could be raising them but and jerry here are i i do know that gene castor is still alive and i do know that for a fact at least unless he's passed away in the recent weeks but so i guess theoretically he would  person that could be question regarding his contact with her burns but it is our position that the declaration itself of juror barnes that was presented and is relied upon by petitioner does not raise itself to the level of prejudice that would require a hearing and why and why is that the standard credible risk of influencing influencing the per because what the declaration says and again it's it talking about the information you got was an eye for an eye and although problematic because it can't be it's goes to some of his pa process that that clarice in itself says it didn't change his it didn't affect him for that saying that they didn't say that it says it affirmed may think if you ask someone for permission i'm thinking about doing this what do you think yeah do it that there's a reason why they're speaking to the person made if there was no purpose to be gained from this why did he do something that court told him don to do one hundred four times it may simply be using that word right but you we keep using this word may may may the fact is we don't know and this is why i think as i understand the door now one argument you could be making to us is that because the district court didn't have the benefit of good boy that we could send this case back not and the posture in good boy in the doorway the district court found there was no error that there had been no problem that the state court had done everything right and this court said no state court got it wrong and you got it wrong you didn't even properly determine whether there was error so you need to do that and that's why it was sent back for a hearing here for all we know the state court did it absolutely right looked at it found adjourned should have done that applied chatman properly and that's why it denied it on the merits we don't know because it was a simple denial but we do know that the district court found there was an error in the contact with the minister so the district court sound error and then properly under pressure in friday hold on stop right there does a good boy apply brecht the boy does not your honor but i think the process and again that gets back the problem is good boy was sending it back to the district court to make that initial determination of where there was error if you were making the initial determination say in the state court then you apply chapman if you're making the initial determination in the district court just to determine whether or not there was error you might apply chapman but before we can grant relief on brecht requires even if the state court even if we don't know whether the state court properly applied the chapman standard brecht requires that we apply the substantial injurious is that what kay says that in this context well i mean nothing in this ticket in the context of good or nobody's looked at it i mean in the context of improper juror contact with third parties i'm not talking juries reading bibles jurors talking to a third party what counsel so long as the defendant gets not deficient advice from one attorney even if the other attorney's advice is deficient  i don't know your honor but i had and i'm sorry if i didn't the maylands declaration certainly says that he and brown pleaded with clark to take more strongly urged i don't pending no your honor i don't i haven't seen any updates on that well wouldn't that be something you'd be interested in before you come to court like if this search petition had been tonight if you're i mean i think this is like and i think didn't we send something to both counsel to say be prepared to talk about logan looks like certain was denied yesterday is that going to make sure is that logan versus united states yes or on was what what do you wha senior something that i don't know that she'd never done a capital case i don't know what she did i don't even know of i don't know what she done but she realized she was overhead and brought alan in so alan the big gun as it were and he's the one that's given him the advice don't take it you know i'm here to save the day and i can get your second degree but two things on that yes alan  experienced capital to me and over mr brown although he had not been involved in the case as long dr mailand who had developed a therapeutic relationship with petitioner over a number of the timing i even thought there was a chance a second degree placed on the fact that the rape was completed before any intent related to the murder was formed how is that applicable here and that does not appear to be a correct state of california there was a rape and does not challenge the the conclusion that the sexual relation most was rape and given the overwhelming evidence in the case i don't see how he could have except that you're disagree with that is a correct statement of california law know if it was rape your honor it would not have that's great it would not be ok it's ok so his his statement about his advice was first based on a asunder standing of california law or an air of california  then it was also based on his view that he'd be able to get all of the confessions that clark made including in the patrol car suppressed and then it was based on his assumption that that he could prove this  dissociative state which was also contrary to much of the evidence in the record so i'm wondering what the basis would be an argument that what his that his advice that he thought he could get life with for parole or even second degree what that was possibly based on the honor is i didn't hear before the life the special setting out what did alan argue at the trial what did he argue happened he argued that there a there was a blackout an alcoholic blackout was what they were arguing and that therefore he had no intent and did not even know what did the court give a second degree murder instruction life without parole if if rape as a special circumstance was proven and he doesn't seem to to disagree that it was rape and so therefore the only senses available if it's if he had intent and there was rape the only sentences are life life without parole or death so i don't even see where life with parole came in i mean i'm trying to understand what his thinking was because we are instructed to give deference to the attorney but i'm grasping at what his strategy was so why don't you explain what he argue with did he argue on the and tend argument did he what was his argument relative to whether the special applied if he said he blacked out and he put evidence and him having mental health problems what did he say he couldn't have the intent to commit rape or litigate the suppression of the statement i know but when he argued the case he had to make a close argument and you would have to get up and saying this is what you have before you right and there is not and you know and he had to have said did he say and that's why you should return a verdict of second degree murder or what did he say or did he say if you don't believe he had the intent you should quit him what did he say and i don't the that portion of his argument when you're on because again also it's kind of hard to evaluate whether he could make an argument of less than first degree and the specials if we don't even know what his argument was except that the plea proceedings are taking place before the trial and we have to evaluate his advice on the plea at what he knew at the time that he was making the plea and there was a patrol car confession that's where he didn't say anything about blacking out and he knew that there was a tape recorded confession where he does claim that he blacked out and they had some evidence that the witnesses and he didn't appear to be intoxicated i don't know if they have blood evidence at that point but the blood evidence later showed that the levels of methodist blood were fairly low so so he knew that the only way he could challenge the intent was on some sort of best case scenario of suppressing both of his confessions and making this dissociative state isn't that right is left the only thread of hope he had to try and get to get something other than rape plus murder yes your honor i mean we think it was it was not unreasonable of him to make that juice lay out these positions but i think the other aspect that we have to look at is in his in his declaration allen states that when he found out that the district attorney would not wait the on the litigating the suppression for the offer but he went back to clark and said it's either life without parole or go to trial and so he came back to clark with that choice and at that point mr clarke said i'm going to trial and that is despite the similarity look to logan where his other counsel was urging him to take the deal from the beginning where  trusted psychiatrist who was treating him was urging him to take the deal from the beginning and there simply is nothing well what if what was brown said vice what we know from dr mainland and that is in the excerpts of record crowds gathered around his dad yes and that both he and both mainland and brown quote tried very hard to get richard to we know that dr mailand says that both he and mr brown and possibly other members of the defense team felt that that was his only chance of avoiding death so presumably that that into this tried very hard that they were telling mr clarke that this was his only chance to avoid that our just briefly i want to touch on a couple of things that i have a question it's not your responsibility not this declaration that we're hearing about for the first time i would like to hear whether that was in the record it was presented and support of summary judgment on this claim in two thousand in the context of summary judgment proceedings we petition objected because it was hearsay  and that the court couldn't consider it as part of its ruling and then it disappeared from the case until today are you saying it hasn't been on the record since then or at what it was in the district court record was in the district court was it in the state part record i believe they did submit it to the state court which is you know twenty one years waiting for a hearing on jury misconduct and they present contrary evidence i cannot fathom why the state supreme court would not grant in miscible and i think that this is why i want your declaration be hearsay then because it's his own statement as to what he did what what occurred he has firsthand knowledge of it this was a dis was an investigator's meet is it to our viewers we're talking about something we've never seen but this was an investigator summarizing a conversation with barnes correct a different conversation a different conversation and indeed has the district court in this case you mentioned two thousand has a detroit ever acknowledge the existence of this declaration i think course you have to do that and so my judgment and so it was left it was left hanging up because i thought it wasn't part of the case anymore because it hadn't been talked about in the briefing but if they're going to raise it now and argue that it  i don't know why they didn't get a firsthand declaration from your barns to this material if it was so important to them i don't have to answer for that at some point i assume maybe not but it's clear hearsay in and it clearly can't be considered as evidence reproof i mean if we had presented if i presented in an investigator declaration as they did i think in the hall case the seventh circuit case they would get remitted because of the presumption of prejudice half or determination as to what the facts specifically were to determine whether or not them but in the the prejudice rebutted for showing a prejudice so all i'm asking is if they're going to submit it now that we have the opportunity to submit as short a brief on the factual circumstances of it and what our position was in the district court and things of that nature i certainly would have addressed that in my briefing if they had raised it hearing was a constitutional or it's said that it's a requirement of the from the supreme court in our determine if there's a six of em a violation so i don't see how chapman would apply for a cour but it's also a burden that the state the state bears but in terms of my argument here is that the state supreme court presented with these facts and post conviction sort of undertaken that type of analysis right and we would be relieved of deference which we are anyway so here we are looking at this issue de nova that's correct that's correct i wanted to touch briefly on the logan issue if i could it's i see my time is up inflate us from that inquiry just because some other lawyer said something different and i think that that's the so if he has effective assistance of counsel and he chooses to go with other counsel how do we how do we analyze that i mean he one of his lawyers gave him appropriated ice let's say hypothetically the other one let's say was deficient and has advice so he was pretty ended with a choice and he made a choice so how do we allies that under the sixth amendment an effective assistance of counsel we analyze it in terms of what choices he actually had who was presenting the information to him and what information they were presenting and we can't lose track track of the fact that what he was presenting to richard clarke was a second degree verdict that's what he was presenting and there was no way to get second degree the colloquy that the court had earlier was all about all about first degree about there's no way to get a second degree given the facts of this case and so that was the promise that was made that was the representation that was made and that was the error of the council made which was your  brown gave him appropriate advice effective assistance of counsel and defendants are allowed to make this decision themselves or the supreme court has said that when it comes to taking a plea that that is the decision for for a sixth amendment right from his lead counsel the guy's been with him for two two years the guy he knows intimately the guy he respects the guy he follows the guy he will will follow so if we follow logan if we say we don't want to make a split with our sisters  performance so so they had the one hired by his parents gave him advice which the court thought was bad well that that lawyer had a lot of problems but it was in retrospect bad but lawyers have to make judgments all the time about whether as we discuss the case determine if it requires any additional action from the petitioner thank you thank you now we're really adjourned i'm sorry