both deal with the penalty phase one is the penalty phase jury instructions which deals with two parts a ring claim and a mills claim the nd claim is that counsel was ineffective for not calling a particular psychiatry or d psychiatry student general dr caruso at the penalty phase i will deal with the instructional error claim st there's a procedural bar issue which i'll get to but i will st deal with the the most to two important facts dealing with the merits is that the missouri jury instruction requires the jury to find an aggravating circumstance beyond a reasonable doubt before proceeding any further and there's no question in this case that the jury did this nd most important fact in this dealing with the mills claim is that mills finds a constitutional violation if a jury is required to unanimously record so that is an important fact to the case law that is important to the ring claim is mckinney the arizona in mckinney the arizona united states supreme court found that all constitutionally required to find out in a capital case is the fact of an aggravating circumstance there is no question that the jury in this case found the fact of an aggravating circumstance the way the petition it deals with that is in two ways one he says that's it it's not real because the case was about really waiting at the sentencing phase and if it was dicta the decision wouldn't holds that this court must follow it was a united states supreme court dicta unless there's a subsequent decision that contradicts that dictum so as a matter of black letter law the ring claim fails and it was fair to grant relief on the nd claim is the mills claim and i'll talk a little bit about the mature missouri jury instruction on the mills claim and then get a little bit into the case along the way the missouri jury instruction works is as we st discussed the jury must find  factor then once they're on sort of the highway of consideration there is an offering that is if the jury finds unanimously that whatever aggravators each  juror has found aggravated excuse me outweigh the aggravator then that's the off ramp the case is over they must find life without parole at this case they found an aggravator they did not find that the at that any mitigating circumstances whatever they thought them to be unanimously they did not you know honestly think that outweighed the aggravating circumstance so then they went on to the consideration phase and the consideration  is considering everything penalty and he's saying that they think is mitigating is that outweigh the aggravated and at that stage they deadlocked they told the judge they deadlocked the proper procedure at that point is for the judge to make a decision whether to sentenced to death or life he did sentenced to death and there's no mills violation and the cases that i cited in the brief in this in the main brief are griffen mcdonald murray and bat and all of those cases this court considered the same jury instruction and found that it did not violate  maryland or mccoy versus north carolina so i think you're bound by precedent on that additionally there's a t bone because it would require an expansion of mills and mccoy which teach that a jury cannot be required to unanimously find a single aggravating a single mitigating circumstance it would be an expansion of that to say that the missouri jury instructions violate that because they don't do what mills and mccoy ban so as well as binding precedent from this court you have a keep on this also a procedural bar issue which because this is not even a close issue i don't think it's really important but it's there the missouri supreme court found that because the mills claim was not properly raised and objections to constructions that trial and not properly briefed in the point relied on it was procedurally barking and then the missouri supreme court went on and addressed the merits in an alternate holding and found that there was no constitutional violation so under harris v reed i believe footnote ten the united states supreme court said that a state court can do that it can find this procedural bar and still address the court level and that could be accurate but it's not weight because this court has the option under the united states supreme court press and the president of this court to enforce a bar even if it was not properly raised that the district court level claim what we have here is a case in which at the penalty phase the offender presented for export three psychologists and a pediatrician three through about sixty five i believe and in those in the opening statement he said dr caruso will testify to x and any immediate and that was the th when he listed out of five and then i follow that with dr cummings reviewed the same materials and she's going to testify a long time doctor cummings not dr caruso and he will give you his opinion on how the mental stuff fits with mitigation and unclear that in other words when we look at prejudice we consider the opening statement i think the correct answer of yes no but i think the district court said yes and the reason i think the correct answer is no is middleton at fifty five and rd and cases like that teach that one cannot aggregate prejudice from separate acts by counsel and i think we have a bunch of separate acts i mean st counsel d was informed on the night before the penalty phase when he got an e mail from dr crusoe saying i didn't tell you but i had some problems in medical school that they might find out and impeach me with here are some questions that you can use to beat th that's when it then convinced by that the next morning when he gave his opening statement he said he didn't say anything about that he said i'm going to talk to dr i'm going to call dr caruso and gave those three paragraphs that i just referenced and then that night he talked to other people on the team and to his supervisors and they talked to him about it and then he changed his mind and didn't call dr caruso so those are three separate decisions in my mind and i mean i don't think  put the whole thing together you've got strickland prejudice but i think you have to break it apart under middleton because it was reasonable when he st heard from doctor caruso on the night before his opening statement to say i'm going to go with what i wanted to do and then do it and then you know i'm not sure at the prejudice from that goes to his later decision when other lawyers and his boss talked to him and said no maybe you shouldn't call him and he changed his mind appendix and then the missouri supreme court at that point when it was on appeal said we will be viewed as a general claim for not calling a psychiatry's did not calling a cruise dr crew so that was pled but we will not review the failure to investigate because it wasn't properly plead so we have kind of an odd thing because we have the motion court ruling on the investigate claim and the missouri supreme court only ruling on the like that and looked both at the motion court decision and the missouri supreme court decision for prejudice and something like that again and weaver be by our socks i think it to forty one and rd but that was a ba so i think what they're trying to do is put the whole thing before the stance my understanding and opposing would know better than i do on that but i think they're trying to raise the whole thing and say it's one continuous act and all the prejudice accumulates i would disagree with that i think this for claims and i think if you review and you've got to review him individually and they're less individually than they are together but i think if you review them all together they missouri supreme court said specifically they would not ineffective for not calling dr caruso and there was no prejudice so that's a broader claim than the failure to investigate claims and i think they've got a very narrow road to run if they're going to say there was no prejudice from not calling dr caruso according to the missouri supreme court because his testimony was essentially the same it would have been essentially the same of any psychiatrist would have been essentially the same as d cunningham and saying but it's different because of failure to investigate it would seem to me that the prejudice would be essentially the same would you please you argued that the last reason  and that is that district court reached the city to investigate claims based on martinez the right firing finding that post conviction counsel was in effect if for not pleading the claim but i do not think they can in the pleading with a failure to investigate as well as the more general claim so i was a matter of law i don't think the district court could have even gotten beyond the pen procedural bar and it can be camera but if one goes beyond it i think they lose  mental health and abusive childhood evidence at the penalty phase in that case they would have put on a defense that the family was good and everybody would miss him if he were executed and he had children and he wasn't a bad guy and they slipped when that last and with this court did in looking at prejudice under deference is this court went to u s supreme court precedents and tried to find cases where the u s supreme court looked deferentially at a state court decision not to was the only case think you'd find like this where the u s supreme court found preference in the excuse me prejudice in a deferential situation was poor and that was very different because porter was a war hero that had been in two very big battles most of his unit had been casualties he'd been traumatized to back to two rowing play he came back and struggled with that but he was traumatized and eventually killed somebody and the united states supreme court said that's the mental health defense and abusive childhood defense that got deference it was the war hero case that didn't get deference and that was the distinction this case megan williams  to talk a little bit about their counsel let me interrupt you before you go to a different take a different track and just for clarification for not going to fit what's what is in the record and you alluded to i think something about this a couple of minutes ago but what's in the record as to why i came out so all d mentioned dr caruso in his opening but some destructive cross examination the difference from what i can tell from the graphic in his testimony at the p c r hearing is that he talked to his supervisors and other lawyers and they told him not to do it and his supervisor in fact told him that if he did do it he should tell the prosecutor about the impeachment and so i think that it's a fair argument that he wasn't legally required to tell the prosecutor about the impeachment evidence i mean missouri supreme court and five says one must reveal statements or reports by experts that one intends to use so i'm not sure this fits within that category but certainly he had been told by his supervisor that he should tell the prosecutor and he was given advice on this by his supervisor and other return to us so i think that is a separate decision after the point where he received that advice and in the context of that advice after his presentation of the defense case it's kind of the face it went to the judge and prosecutor and told them and said the prosecutor should not comment on this because it would be prejudicial and the prosecutor did the so that may be an important factor as far as prejudice because in closing argument the prosecutor did not mention put the failure to the  caruso well even if the prosecutor didn't mention it the way that the argument laid in was essentially all you have is this all the evidence all you have is cunningham is unreliable because he's you know basically and paid for by defense lawyers makes a lot of money and is not reliable because he's never testified for the government and then he just got this old stuff the whole most of those old stuff which clearly in light of the opening statement does tend to draw attention away i was with somebody else call right but my question really is this is that as we do the now loss on the prejudice wrong it factually the analysis of that prejudice is essentially the same whether there's a failure to investigate or a failure to call or we hold deference to the missouri supreme court's factual finding claim of failure to call a psychiatrist and they specifically referenced dr caruso and the narrow claim for failing to call him for reason x whether they failed to call him for reason x or reason why the court found there was no prejudice from not calling him and i was going to go back to it earlier part of your question it wasn't all old stuff from dr cutting him dr cunningham get lots of interviews and such the other two test of the witnesses who testified from the defendant's childhood scripts or cutting him was unreliable because he's just bought and paid for and that's where where i was going with important distinction there too because at the post conviction hearing the petitioner didn't call dr couso and said i would have testified to x they called dr peterson and said if we had called a psychology excuse me a psychiatrist like you gap in the sense that dr cummings talked about everything his different psychological everything that had happened to him in his life and said that made it hard for him to make good choices  to comply with the law he didn't say it was impossible he said he can make choices but he said all these things makes it hard so i think in a sense that goes to your question but it may not use the exact words and i think you'd be in the opening statement concerning dr caruso counsel used exact words from to exhibit aggravating mitigating circumstances saying counsel would would address those although he would have instructed on those and he said so but he later when he talks about dr cummings just said he will give you his view on how this all fits together with mitigation so it wasn't just same specificity but i think this rest of the cummings testimony was that because of all of his mental difficulties and his background it was very difficult for him to comply with the law and make correct choices although not impossible so i hope that answers your question she find the trial counsel were ineffective for failing to vet their experts and thus failed to present what was the linchpin of their mitigation case as they promised that your judge held that you mentioned right up your question was was question about the closing argument that's exactly what the state hit upon they talked about that gap and at one point they even said to the jury there's nothing regarding what happened that night ineffective assistance of counsel they did not that their expert and it's and if this wasn't you know i guess before we get into the vetting i mean this was a close case the jury refused to return a death recommendation they were deadlocked they rejected three out of the four aggravating circumstances submitted by the state so in that context defense  counsel and and when we looked at what they did on that and they did a great job on that end but the other half of the case and that was their purpose in theory from the beginning was to talk about state of mind and history only gets you still claw you have to to if you can touch the life that night that is strong much stronger mitigation i'm talking about just history a that's what they in their penalty opening they promise a future dr caruso they promised mental health evidence related to mr mclaughlin his mental state of time at the time of the crime and then they didn't deliver then they broke that so today and in their brief here to hear the attorney general they talk about we're trying to improperly she white claims that's not the case and this judge perry did not keep a promise and paris's personal credibility and may lead the jury to view the unsupportive claim as an outright attempt at misrepresentation that's their argument to the dish they they themselves blow and then and even in their post hearing and sixty nine so they're they're trying to change strips change shifts midstream they argued it was appropriate for the district court to consider this and setting all that aside  setting aside their change in position on that the supreme court says it's ok if you look at the wiggins case wiggins talks about in the prejudiced analysis that it's important to look at the fatality of what  occurred at the time of trial and wiggins specifically referenced trial counsel making a promise regarding presenting evidence regarding a client's history and background in breaking th m so what the district court did complies with what the supreme court says they can do and complies with what the response of the attorney general below had argued to th em and i think that half of this is that there was no expert testimony that addressed mental health at the time of the crime and and that's significant because what happened is that there is you had the ability with with dr cruz or dr puryear petersen to talk about that there's a cause a connection between his mental health symptoms and his and impaired actions at the time of the crime and we know that this is a mitigation theory that they wanted to present they had retained dr caruso for over a year before the time of trial and they intended to this was this was going to be  their attempt was to establish that the statutory mitigators of extreme emotional distress and that mr mclaughlin was substantially impaired and did not did not have the capacity to appreciate and conformance conduct to the law and that jurors it would have provided substantial mitigation but not only that the expert testimony would have contests the lies in less than the one aggravating one aggravated jury found remember they rejected re of the four aggravators and the one aggravator that they found related to the night of the offense the actual offense so any evidence that you can marshal that that change the focus from the client being i think the term was cold blooded that the supreme court used and to a compulsive reaction that changes the face of what the jury for considering  so what we have here your honor is a claim that the missouri supreme court found to be procedurally to fall and so i think that the district court was well within its well within its be able to assist us because his focus wasn't on anything that happened at the time of the crime his focus was more on scott's background rather than on anything that would have happened at the time and then he says we diagnosis so that cumulative finding for the reasons that the district court asserted and it's fully supported by the record you know that's that is it would be inappropriate to sort of sir you're right your honor they mostly serve prejudiced functions but they also touch upon the performance from for instance the promise an opening argument discloses you know it's relevant to the performance problem because it demonstrates this is what trial counsel this was one of their theories a mitigation and this is the theory of mitigation that they were expressing to the jury that day so it's a you know real time representation of what they wanted to do so what and the way the district court i think properly treated and credited the evidence was that when you counsel should never have been in a situation of deciding at the last minute between calling an expert with a serious truthfulness problem and calling no escort at all so the core claim is a failure that this bears upon the strike one question just as the attorney general is talking about what evidence was presented at the mitigation phase bears upon the prejudice question you know that's what the district court that is correct considered the totality of the facts and circumstances and crediting and finding that these these attorneys were ineffective or failing to present evidence on a theory that they wanted to present that's the court saying they did a but they should have done a plus or they did a but they should have done b this is a case that's recognized by the district court they wanted to do away and they couldn't do a because they made a huge mistake and it was a huge all they had to do was was that their expert and this testimony that they described that they needed they they the jury found because that relates to the night of the crime the action on the night of her and and then essentially last there was no mitigating evidence from a mental health professional that examined him about his is mental state at the time of the crime and it's it's pretty easy to do and i think the district court was right to say that the trial counsel failed to do much of fields and had been impressive i haven't looked at it but i assume the curriculum bought time was equally impressive so  and also the a b a standards about preparing preparing your case so when you and i think that's why i like the opening statement is so important and trial counsel at the end saying i was ineffective for promising that in opening statement this was a critical piece of your case and as any lawyer knows if this is the linchpin of your case you bet you've got to lock it up as best you can and we're not talking about you know he changed one answer and an exam we're talking about the author fabricated and destroyed as a that's a pretty big deal and that's something that you're  if you try to present that and i think we forget he authored fabricated and destroyed evidence so anything he testified to i mean you don't you don't have to think hard about what that cross exam would be and what the closing statement would be to the juror and i think with that so i think the closest case judge sheppard and and i apologize for not leading with this would be versus alabama which relates to not knowing and again you know strickland's a broad standard so it's hard to find a supreme court case exactly on point but i also would stevens versus mcbride out of the th circuit and  court would want to look at that addresses that and that's what trial counsel being mistaken about their right to an expert in this case we're dealing with an expert that was mistaken about the qualifications of his expert of  that he faltered fabricated and destroyed evidence and a judge that it's it would have been and i think that this report makes this point it would have been so easy to to figure this out whether it's an internet search or whether it's when you're on the phone with with dr caruso saying hey what are they hitting you right you know this person is he's presenting at a conference he's testified before you know maybe you ask them over that year like we're talking about a year here it's not like they you know they only had a week you know you know he's testified before you know he's a prisoner asked them you know what are they impeaching you with in these other these other times you've testified so it's really not a heavy lift even you know i think a google search is not out of out of the realm of possibilit y and you know if you even if you have to do multiple searches you know what would that take fifty five minutes i mean ten minutes if it's not time consuming and it's not it's not so anywhere from one dollar to eleven dollars jurors felt that life was the appropriate sentence and when you have trial counsel indicating from the beginning that the state of mind and on the night of the offense is a critical mitigating feature of a theory that they intended to present and they can use their medication face on it and you can tell that from the opening argument the trial counsel were in effect and they and in a close case that filling that gap presented in presenting the that state of mind evidence not only puts forth affirmative right that the district court only went to this claim after finding going through procedural in the fall so the district court these how it credited peterson how it credited trial coun and i think the critical one of th critical nature of this testimony is when when you get into this state of the mind you could've ended for the jury how compromised mr mclaughlin was that night and how the the state of mind that he was in in that state of mind impact would have established the existence of two statutory mitigators and would have undermined the one aggravator that they found and this is a case where the jury was open to mitigation again as the missouri supreme court said this this was a house of horrors there is a history of abuse and neglect there was the history of mental health and have been present and all of those building blocks for the expert to describe his mental state at the time of the c but if this court is inclined to to give credence to their lack of waiver and i don't think they i don't think it was i think it was i don't think it was negligent they said it was negligent but if you're are going to give credit to a procedural default this court's authority requires us to be righted noticing an opportunity heard and that would appeal being denied so so t is not on the table i would ask you also ask you to affirm judge perry she committed no air requires facts findings made by a jury i would i will close i have just a few few minutes left if there are no questions on the wrang i will go back to the in effect since the counsel again the district court  studied this issue took evidence and and did know and it did no contacts credited testimony and and ultimately concluded that mr mccausland attorneys unless there is clear error and there is no clear error here the testimony that could have been presented would have provided existence to statutory mitigators and would have undermined the one aggravator the jury found and a close if there are no further questions on bass and mr mclaughlin i want to thank the court for extending the time for argument i know you didn't have to do that and back to another reference to establishing status statutory mitigators the testimony of counsel at the post conviction fieri was that it is his practice never to use statutory mitigators in a capital case because he feels it takes focus that it wasn't addressed on the merits by the missouri supreme court the failure to investigate claims that does not deal with williams v roper and the district court addressing the in failure to investigate claims on the merits after  cunningham excuse me dr cunningham's testimony was how it was difficult to make a choice at the time of the trial of the crime because if everything that had happened to him he went on and on about that so in that sense it s somehow in adequate for not doing testing well dr peterson who they called at the p c r hearing tried to do testing you tried twice i believe with the p s a i couldn't get consistent results there other experts into a psychologist d trial in the fall d of two thousand and six we're not dealing about hindsight strickland is very clear that we shouldn't look back and say ah something bad happened the question is what was what counsel did which is he knew that this man was an expert he knew that he gave lectures he knew he had been drafted recommended and he knew we had testified multiple times before i think that by the time of trial there's evidence in the record that he had testified something like ninety times so was it outside the wide range of professional competence not to look back and find something he did in medical school no another thing which i have heard twice preferred to as altering evidence falsifying evidence this was definite and an experiment it wasn't evidence and a case i'm not sure that's important but i wanted to correct the record on that i heard of reference to the missouri supreme court saying ho horrors my recollection is not the missouri supreme court found that this was a house of horrors but that a witness supposedly told this to one of the experts and described as someone who knew him from childhood  in reference to tube i've heard that doesn't apply because mccoy and mills predate this case the standard for t is does the case dictate the result in this case not is it earlier but does it get kate the result lily and mccoy don't dictate a result the petition wants now they certainly didn't at the time of trial that is an expansion of mills and mccoy so  be ryan to get past the bar i see you have i have about a minute left so i'll be quiet and ask if there are many questions thank you your honor i appreciate it thank you very much counsel prescience your appearance today d in case has been well argued and it is presented the court will render a decision