thank you and may it please the court my name is stephen farrell and i represent petitioner appellant christa pike in this appeal from the denial of federal hate b s really i would ask the court for eight minutes to reserve eight minutes of my time for rebuttal please  you this court must reverse the district court's denial of relief on the grounds of ineffective assistance of counsel in the penalty phase of kristin pike's capital trial this is because even under the facts found by the state court and now advanced by the warden the finding that counsels performance was not substandard is unreasonable furthermore the finding that prejudice did not result from this substandard performance is also unreasonable because had the proper mitigation case been presented there is a reasonable probability that at least one juror would have voted for life in this case it's not sub standard performance excuse me your honor yes it's deficient performance thank you that fell below the standards set for performance in a trial in a capital trial the tennessee courts unreasonably found that councils performance was not deficient trial counsel hired dr diana mccoy to conduct a mitigation investigation in this case which was an important step because all the council recognize that this case would almost assuredly go to the penalty phase and that the penalty phase a guilt guilty verdict was almost a foregone conclusion and that the penalty phase was the most important portion of her trial dr mccoy gathered records and interview potential witnesses both counsel and dr mccoy testified that they communicated frequently about the status of her investigation and what she was finding she prepared a list of mitigating themes suggested mitigation witnesses and also prepared a three volume compilation of her work product that was labeled the social history all of this was done and the social history was prepared and copied and given over to the prosecution just before the penalty phase began in anticipation of her being the lead witness in the capital portion of the trial however at the last minute counsel did not call dr mccoy counsel's reasons for this is that he stated that the last minute he learned that dr mccoy would not corroborate dr ingram who had testified in the guilt phase of the of the trial would not testify would not corroborate dr income's diagnosis of borderline personality disorder thus under counsel's own testimony they had to make a last minute change of plans because of what the state court called existent circumstances a finding out this lack of diagnosis or disagreement about diagnosis at the last minute this failure to inform themselves about what their own expert witness would testify to is the reason for elisa m for not having determined this earlier that you exactly having not inform themselves what their expert was testified or was prepared to testify to and not and finding that out of legibly at the moment before they were to call her to the stand this is substandard performance no competent attorney in a capital case would expect an opinion from an expert and not inform themselves as to what that opinion would be in advance to putting her on the stand played out with this court need to think what would in order to evaluate the ineffective assistance claim here on p b s review does this court need to evaluate keeping in mind what would have been done had counsel known earlier the dilemma could been presented earlier and that's your point yes yes he could have known informed themselves exactly but then what if for example if the point that would have made things different if they had  inform themselves at a point unclear and before the months before then according to the state court the reason experts still don't agree hire someone new what would it's not necessarily that they didn't agree what the court found was that she said she couldn't corroborate the diagnosis because he hadn't hadn't asked her to do testing so i think at that point it would be incumbent upon counsel if they expected a diagnosis to tell their expert will do the proper testing or continue your investigation and we'll be prepared to put dr ingram on in the penalty phase because dr england that was dr ingham's diagnosis but he prepared his report long before  that he prepared his report right about the same time she began her background investigation so there was absolutely no intersection of those two parts of the investigation certainly if council had asked dr mccoy well in advance then she could have either done the testing or recommended a different course that would have allowed expert testimony to be presented in the penalty phase and so clearly and certainly if counsel had informed themselves prior to turning over the social history they would not have proceeded in that matter because all of her work containing all of the witnesses statements all of her background investigation was turned over in anticipation for her testimony this allowed the prosecution to use that information to cross examine the witnesses so this is where the deficient performance certainly at hears and then where we begin to look at the prejudice that resulted from counsel's failure to inform themselves about their own case and the  prejudice first of all begins with that aspect of the social history going to the prosecution because the prosecution then asked for an overnight recess to go through it and then clearly used that information in cross examining the three family members who happened to be present at the trial and the court again has to remember that count through counsel's own testimony they said they planned to center their case around dr mccoy no other witnesses were under subpoena and they were stuck since they didn't ask for a continuance or any other sort of relief that might have given them a chance they were stuck with the people who happened to be attending the trial krista's mother her father and her aunt and these people were prepared hastily at the last minute and put on the stand and because they  prosecution had gotten copies of the social history in counsel's own words they were able to use that to rip up the mitigation witnesses deficient performance to give the prosecution  social history in the report not necessarily no no deficient to call the family members or were they not adequately prepared or what's the no the i believe they were not adequately prepared and that could be pretty deficient performance and but turning over the social history would not be deficient performance if it was to be used to support expert testimony now in this case the social history and because they decided not to call a doctor  mccoury that point they should not have given the social history the history was given to them before they made the decision to call that's their testimony is that everyone's testimony is that they gave the social history but that that was correct that was proper conduct of consul at least at that time right perhaps one of the i say perhaps your honor try to combine things here if the social history just to be make one point clear normally am an expert's report must be turned over but i thought the rule yes it's hard to see how that's deficient but in this case the social history had absolutely no expert opinion to qualify it as a report so counsel had not even verified that the social history what they believed was a report that they were turning over would certainly agree with you judge griffin that that would obviously have to be turned over but it didn't even contain her opinion and counsel wasn't aware of documentation or testimonial provisions from that expert and to call them interim correct correct if they had not intended to call are insufficient time for the hearing then they would not have been required to turn those documents correct correct they would not have been required to turn over her report and this happened the guilt phase ended on a friday and the penalty phase was to convene immediately and perhaps yes but normally it would be in support of an opinion and that was as soon as they turned over the opinion both the trial judge and the prosecution were looking through it saying we can't figure out what her opinion is it doesn't appear to be stated here and what would have had to be turned over and what would have to be prepared but normally it should have been a report stating here's what i've reviewed and maybe attach those documents in that that information and here's the conclusion that i reach it contains no such conclusion no such opinion so certainly had she prepared a report that would have to be turned over before she testified and given the state an opportunity to look at it and review it to contest it that didn't happen in this case because there's no opinion in it and at the moment when they turned it over everyone in the courtroom is looking for her opinion and they are in their feature in this factual scenario that she wasn't asked to give an opinion that that is it on the opinion coming from the other doc that is her testimony mr thomas testimony is that he asked her for an opinion i'm still trying to figure out your point your point that they turned over the report they did not have to turn it over they would have had to turn it over had it contained in pinion ok it should it doesn't have an opinion so i mean what's the whole point of this argument i tried that this is that that they turned it over gave the negative in from a potentially negs should not have done it if they weren't calling her as a witness no they shouldn't hell ok if they make it made a strategic decision late in the game not to call her but if they wanted to keep that old that option open they had to give out the report so many days in advance they assume right well that there wasn't a hard and fast rule in their interpretation of the rules they didn't have to turn it over till they were ready to call her like the moment of yes that's right well i think that would result in continuance they have to have time to review and everything right and it did in fact result in a continuance in this case and overnight continuance not any any link the continues so your point is and is is that because they didn't call her they didn't have to give the report report contained negative information that would hurt your client's case and therefore they should have made it the strategic decision not to call the doctor earlier in that way the report would have come out there and that would have come in and because it came in it was prejudicial and i think my point is that they had an obligation to the if they were going to have an expert witness in the penalty phase they had to determine what that expert's opinion was and then have her prepare a report with that opinion there's it's it's better if the report doesn't contain the opinion and then there's the prosecutor doesn't know what the opinion is going to be attacking i mean i think experts should have opinions in their report and maybe they require do but i think it actually helps your client if they hope they don't resent the opinion and hide it and and spring out of the trial well under that scenario  and normally the rules do require that the opinion be expressed in the report but if that had been counsel strategy at the same time it would still be incumbent upon them to know what that opinion is and to know that their expert is prepared to testify to it there and support it yes that's a very basic law and certainly this court has found that in richie v bradshaw but the in talking i mention the report because of the prejudice aspect is now the negative information that many of the family members have expressed about the defendant in this case could now be used by the prosecution has been given ammunition and absolutely no expert to give that information any mitigating context and in fact the jury does this in series re up to where the supreme court talked about the problem of the jury being misled the jury was misled about some of the facts in this case i bring to the forefront the butcher knife incident where they brought up in the tennessee supreme court mentioned it in their opinion that christa pike could attack one of her mothers with a butcher knife because that was contained in dr mccoy's materials the real context of that butcher knife incident was that christa pike had indeed gone after one of her mother's boyfriends after this boyfriend had been sexually molesting her had been as she put it feeling her up and pinching her breasts and her mother would not respond to her complaints about this children services intervened that krista called the police at that time children's services intervened and gave the mother a choice either the boyfriend goes or we take christa into custody but the jury was misled into believing that this was some sort of unprovoked incident against the mother's boyfriend and there was nobody to discuss the actual context of this and that's just one example without any expert to talk about the effects of the bad parenting there was no one to talk about the effects of the lack of consistent education for this child who was a from all testimony bright and able to do well in school at the beginning but who went through so many changes being shuffled back from her mother to her father changed schools nine times before the age of fifteen years that she  dr mccoy and to repair her testify not necessarily if she had been allowed to testify that may not have been in substandard scuse me deficient performance in this case yes that information would have to have been provided and she would the it would have been subject to cross examination yes but about the very thing that the three individual family members were had that was abandoned at the last minute according to and we've contested the findings of fact of why counsel chose to do that but under the findings of fact in the state court counsel said it was because his expert couldn't corroborate that's why he supposedly called back and they all said there's no opinion in here and so he goes to her and says i need what your opinion is i'm now here telling me something good but i'm at a loss to understand how he could know what her opinion was but is this the scenario that his testimony is that he she told him her opinion in a little huddle in the courthouse at the moment he was going to call her and that he hadn't kno before that she said them after people contacted him and said you've given it three volumes of social history where is the what if i hate to sound unclear but the facts and the testimony on are are very unclear and his our stance or our understanding of this is that dr mccoy's testimony is much clearer as to what happened mr tallman submissives rice's testimony doesn't really jive with the actual facts which is why we think it was unreasonable that the state court found them supported by the record we think that those state court fact findings are unreasonable what would the standard there i mean to we presume that to be correct that this is more or less a credibility determination is it not yes in which we don't overturn that lightly in fact it has to be extreme to d s a that was wrong we weren't there and we didn't see their face in that all that and we still say but in reasonable to credit the other person to credit the lawyer over the x yes this court must look very carefully into the record we think that we meet that standard but even if we don't even if we don't if count if the trial counsel's testimony is believed in the state fact fact this state findings of fact are accepted it's per se deficient performance to be ready to put on an expert when you don't know what that expert's opinion is going to be and then to have to make it we are talking about present a good district court there and the attorney and to call dr mccoy the the i know there is some concern about the attorney was providing these three earlier or as opposed to when he gave it but that let's just put that aside this right whether he was accurate or straight up about when he got the material he gets the material he's going to put dr mccoy on the stand and he turns the material over all with an expert opinion and the when he's getting ready to put her on the stand he huddles with her in the hallway and says what is your expert opinion about her mental capacity it just happened yes and so what your position on that that that he when she said according to his testimony i can't corroborate d testimony that he had to make according to state court a tough decision in existence circumstances but it was his deficient performance that created those deficient or that those exit in circumstances that resulted in to have an extremely abbreviated misleading mitigation presentation that covers less than sixty pages of testimony about an hour and a half by my estimation in the record of actual testimony in the penalty phase in a case that clearly depended on the penalty phase and in which the mitigation investigator had uncovered evidence of sexual abuse of the child of at least two rape allegations that her family did not believe did not follow up on of having her education not just that it didn't go well but basically was sabotaged by her parents who often threatened one to the other well i'm going to send you krista well if you're not doing what i asked i'm going to send you krista and so that she was destined to fail in school that when she had troubles based on the sexual abuse and the the other the rejection from her parents there was no follow through as far as parenting and that when children services begin to get involved that test that i'm sorry my time is up i didn't ask what question yes or what part and parcel of those mitigating circumstances was not presented by the three family members it was the sexual abuse the involvement of children services the there was misleading information given the father said he was a strict disciplinarian when in fact he was abusing her and left marks from his repeated beatings there was absolutely nothing positive presented about christa pike even though lots of positive information was available the things like the butcher knife i'm sorry thank you thank you you have read serves some time yeah right ok next mr douglas relief in this case because it was not objectively unreasonable for the state court to conclude that trial counsel's performance during the mitigation phase of the trial was not deficient and it was also not objective leon reasonable for the state court to conclude the petition had failed to establish any prejudice when the tennessee court of criminal appeals examined the deficiency problem strickland it concluded that trial counsel had multiple reasons for not calling dr mccoy the some combination of which led to one strategic choice to leave her off of the stand the court first observed problems when that decision was made we have in the record that he was meeting with her what fourteen or fifteen times had telephone conversation with her must have known that this was the key witness has his initial client is very reasonable i need a good expert i need someone who can make an examination of the whole history and then i need somebody to explain all of the things that flow from their history from an expert testimony her mental illnesses her personality borderline personality disorder all of these things i can understand that that's a great guy in play and you don't bring in anybody else who knew all the other difficulties and you just go right th medical about this woman mental capacity and her emotional pain what trial counsel testified to was that based on all those conversations that he did have with dr mccoy she was under the full impression and belief that she was going to corroborate doctoring thems diagnosis she'd never given him any indication that she disagreed with the diagnosis or that she couldn't corroborate it and that was even something interesting thing in that point is that the jury did  benefit of knowing dr ingram's testimony that pike suffered from borderline personality disorder so that was provided to the jury wasn't provided in the way we're talking about here in the penalty phase but that was part of the part of the evidence or a basis for their penalty decision yes your honor it was and the jury was even instructed to that it could consider all of the evidence that was presented during the guilt phase which included d ingram's diagnosis but going back to your question did judge strange dr mccoy had said for example in her mitigation themes letter that she sent to trial counsel that one of the biggest themes was borderline personality disorder so based on all of these communications trial counsel had every reason to believe that she agreed with the diagnosis and would be able to confirm it  medical opinion is he's about to put her on the stand certainly and looking back through the lens of twenty twenty hindsight there are some different questions that trial counsel could have asked dr mccoy but that's not yeah but he did  g to believe that she would agree because the report said borderline you know didn't give any indication she would think i gather that it's in there enough for the twenty twenty hindsight is something else but he had maybe some reasonable grounds to presume and that is that deficient no he had grounds for it maybe yes your honor that's absolutely correct he had he had to add he absolutely had grounds to believe that where are his written his written grounds written grounds where is the lighting from that an expert to testify and one of these cases he would render to the attorney he's going to ask her questions where is her record her report was introduced in evidence at the post conviction hearing it was not obviously introduced during the trial but that was the three volume social history and then the other and he h not play that report in evidence when he's talking in the hallway after all these years of working with there and say oh oh do we how are you going to testify  could a competent attorney not already know he has her record he knew what her testimony was going to be how could he not know your honor that i think goes again to what the court of criminal appeals pointed out was a discrepancy between the testimonies of dr mccoy and trial counsel and every all trial counsel testimony indicated that he did know what dr mccoy's opinion would be it would be the petitioner suffered from borderline something written we don't this is not just a question of i was kind of surprised when she told me a secret in the hallway this is a question of h report he knew what she was going to testify to when you're saying that he understood that to mean that she was going to testify about supporting dr incomes testimony and so he has in the end he has to ask her for the first time in the hallway where are you on dr ingham's testimony and he doesn't know what her report is about your honor i think she's to hear what his testimony was was that he was in the huddle with all of the defense team and was going through a plan of how he was going to present the mitigating evidence he said first i'll call you in your corroborate doctoring of his diagnosis and that's when dr mccoy suddenly announced that she couldn't corroborate the diagnosis you're you're not you're not here arguing that this was a super super trial practice that's not your requirement is it no your hon that was not the way the best way to go for sure it certainly was not the best way to go there were things he was it takes right you know he should've known right but he didn't know now what's the what's the issue here the issue is that he had several reasons for not calling dr mccoy in the ultimately that decision was an informed decision it was not an example of trial counsel failing to conduct any type of a mitigation investigation that's the important issue is that he had something to say about this conversation right before he was put on the plane but how could a confident we're talking about  not convinced that you can say it's reasonable trial stares gravity to find yourself in a corner and make a poor but maybe acceptable decision if you yourself backed yourself into that corner if you created the problem then you failed earlier in your representation and it's not an excuse that i didn't know what to do the last minute because he should have long known what to do is malpractise different than disposition performance the question before us today i mean say it's malpractise in the civil case that would have been you could have gotten performance and and then your own prejudice follows as a matter of course because looking at just the the last minute announcement of dr mccoy doesn't take into consideration all of the other work the trial counsel did to investigate this case and to prepare his mid the mitigation phase of this case and all of that work did not rise to the level of being objectively unreasonable in fall below i would agree with all of that early work with adequate performance within he didn't you think he had already given them all the ammunition they needed to destroy the witnesses that testified and he did not could not have known that and we render an adequate performance i find it really difficult to understand how backing himself into this corner and not knowing what her professional opinion was when he had planned her to the only witness can can be acceptable in fish and performance in answering that would you remind us what the other reviewing courts found in that regard with regard to that very thing they did they seem to think it was it didn't meet the strickland standard the reviewing courts looking at it they the  criminal appeals noted that trial council's decision was reasonable at the time based on a combination of factors that dr mccoy's announcement was not the sole reason that he chose not to call her as a witness the court of criminal and you certainly are on her the first straw for trial counsel blues dr mccoy's admission shortly before trial started that she had been in a prior romantic relationship with the chief prosecutor in the case and trial coun testified the dr mccoy did not disclose that relationship specifically because she was afraid that it would cause truck counsel not to retain her for the case so while he kept her on he was still very uncomfortable with the idea that this relationship  existed the second straw for trial counsel was the fact that dr mccoy would come up in the trial and come up to bite him i assume there's a problem if that's disclosed in the trial one way or tother right it's a risk it's a risk and he was unsure of how that relationship had been resolved between the two of them if that would somehow impact her potential testimony i believe about that relationship he did not pinpoint a phase the guilt phase was i believe about two weeks and the second straw for trial counsel was an interview that dr mccoy gave during jury selection she talked to a local television counsel called her after seeing the interview and said he felt uncomfortable with a member of the defense team act giving interviews and talking about a case in which they were an active participant in the third straw for trial counsel was the significant amount of negative information that was contained in dr mccoy's report when dr when trial counsel read it he was afraid that even if there was a psychological explanation presented to the jury about the petitioners prior behavior that the jury would ignore that explanation and focus instead only on her prior bad acts struggling to understand why he was not aware of there when he had right yes your honor i think she was not them on the twenty one of the twentieth and then gave them to opposing counsel the night before yes in the continuance so he had had them for for at least four day yes prior to actually turning them out yes your honor and what was his responsibility during those four days to determine whether he was going to call her or not or even ask for  continued believe his responsibility was to review the documents which he did and he said that after reviewing all of them he felt that the prejudicial of the potential prejudicial value or the potential prejudice of the negative information about petition outweighed any probative value so that was the expert by meetings with her regarding what she was finding out from his from her and from these other witness correct possibly he said the trial that dr mccoy never gave him a play by play for example of everything she was discovering but certainly is reasonable to believe the trial counsel knew at least some of this negative information  honor again there are there were some different questions that trial counsel could have asked dr mccoy but looking at his entire performance it does not fall below an objective standard of reasonableness because he made an informed decision based on his investigation at the time about that one feature and maybe we can step back for a moment and speak about the prejudice certain this was a client that would be very very difficult to come up with a defense yes your honor given the what the jury heard in the guilt phase counsel's doing yeoman's work to try to you know in the he was probably appointed trying to do his best for this client so his our job here at this level now that the district court and the courts of appeals have decided are our job is to look at that aggravation as a whole weighed against the totality of mitigation that was available at the time so the situation with changing experts you know there are four reasons apparently the appellate courts in that state accredited those rationales and ended up deciding that the performance was not deficient i think both and that even if it had been the there was no reasonable probability that waiting vote against one another that had the culpability determination by the jury could have been affected i think generally speaking so could you address that aspect you know what the if the all the best weapon is all the best mitigation had been presented and really it all boiled down to there was a reason why this woman had acted the way she had it was her you know dreadful dreadful upbringing right and it could also be the brain the personality disorder that was brought into evidence correct i mean that had to have a bearing to talk about that you know should that counsel gives us a good argument here that why why does all it had to do was affect one juror you know it has to be unanimous right so so what's your best argument about that that the state that the court of criminal appeals considered all of the additional mitigating evidence that was not presented in trial and they determined that would have been a the later expert the post right to post post penalty  interviewed and came up with the report ok so that's some of the evidence the court of appeals looked at we looked at all of it they looked at every single piece of evidence that was presented and is now being is being raised on this people the court looked at all of it and determined that there was not a reasonable probability that but for trial counsel's failure to present this evidence that the that one member of the jury would have concluded that the mitigating factors outweigh the aggravating factors and did not want a sentence of death the jury found to enhancement factors in this case and the first was that the murder was committed in an especially heinous or speak for themselves in regard to this and has been factor in the second enhancement factor that the court found that the jury found was that the murder was committed to avoid the lawful arrest of the defendant or of another party and there were petitioners own statements in her confession to police that she heard voices telling her that she needed to do something with the victim to ensure that she did not get reported and then arrested for attempted murder so in light of the overwhelming evidence as the tennessee supreme court called it of these aggravating factors it was reasonable for the court the state court to conclude that the failure to present any additional mitigating evidence would not have created a reasonable probability of affecting the outcome of sentencing and with the court also under tennessee law how are the how are jurors how is the jury to think about the aggravating and mitigating but how do heinous how does heinous and atrocious these extra factors what are they called aggravating aggravate how are those factors to be considered in the whole picture i don't know quite how that works they're all to be considered similarly for example the aggravating factors are all considered and then weighed against all of the mitigating evidence and here even though there was new additional mitigating evidence presented during the post conviction proceedings it was largely cumulative of the evidence that was presented during trial and in order to establish prejudice the new evidence has to differ substantially gating that would have come in or did come in even considering the post where they they were allowed to consider that to the guests expert testimony that didn't get presented at the guilt phase but did or or even the penalty phase but did come to the jury's attention later really they get to consider that which the trial counsel had been presented in the penalty pays they weigh the evidence that was not believe also may have misunderstood your first question and i apologize for that were you talking about how the post conviction court considers the mitigating evidence or how the jury at trial i am considering th evidence from post conviction that the expert did some examination of her all the things we're talking about and presented that in a report that was or was not considered by the jury the report was not considered by the jets all post presented was largely cumulative of the evidence that was presented at trial that the jury heard about petitioners difficult childhood they heard about the the physical emotional and psychological abuse that she suffered they heard how she was rejected by both of her parents i asked mr farrel that question and he said that dr mccoy would have presented additional mitigation evidence that did not come in otherwise and because dr mccoy was a call that there was other litigation evidence that the jury was not advised of how to respond to that then again it was just more evidence of her difficult childhood but the jury was already aware that she did not have the easiest of childhoods this this was not a case where the jury had no clue just strengthen the claims that are already in front of the jury as to this and that yes your honor exactly it would have just provided again it was not prejudicial would you concede that the not prejudicial defenses a little stronger than the deficient performance or do you think they're equally as strong i think that under the differential standard of that we're not both but i'm just saying as one stronger on the other one or not you are i believe that both are strong in that there is a state court decision that is entitled to deference and reasonable interpretation of the law yes and you won't concede to me i think your your prejudiced defenses are better in the other one but ok that's ok the prejudice your honors certainly christa pike was prejudiced by counsel's deficient performance and things were left out of the penalty phase as i mentioned earlier there was no evidence evidence presented about the sexual abuse that she suffered there was evidence that dr mccoy gathered that she was how do we assess that that you had would have made it different i think this horrid upbringing i think you have to look at it the way the jury would have looked at it and certainly they looked at the aggravating circumstances that was the state's case and it was presented and now the defense had their opportunity and they completely blew it and you've got to look at what the jury could have heard and could have what and sit would they have not heard that would be moved them much better had they heard it it's the sexual abuse that is why do you have a tick off list a sexual abuse proven or was that just an allegation i wasn't quite sure if there were allegations the problem has in many cases of sexual abuse unfortunately are that they weren't well explored at the time and crystal was not believed her parents her and that the effect on me and i mean if their mere allegations with no supporting proof would they could have been objected to and actually been admitted the fact that she made those allegations there was evidence of it i don't think they need to prove it in order to prove the fact that she told her parents that she was sexually molested they didn't believe her she attempted to commit suicide and one of the aspects that this court has found in finding prejudice is were certain allegations corroborated dr mccoy had gathered medical records to corroborate these allegations perhaps they didn't corroborate that she was sexually molested but they corroborated that there was an event that she told her mother about her mother didn't believe her she attempted suicide those facts are corroborated it was corroborated with her school records how many times just how many times she was shuffled back and forth from her parents and how in first grade she was starting to do well scholastically but was drawing inappropriate sexual pictures suggesting without proving that she was either molested or exposed in appropriately to sexual situations she shouldn't have been furthermore the jury was misled about certain of her actions and how she was rebellious was certainly she was rebellious but an expert can put some context when a nine year old child is acting up it's probably not fully the nine year old child's fault certainly could happen in the best of homes but here we had something that was clearly not the best of her other hand count three do we expect that jurors are holding behavior of a nine year old weighing in terms of an aggravating factor when they were instructed to yes and when the defendant in this case is only eighteen years old yes i think that they are and i think that there's a reasonable probability that in this case they would have weighed that especially if they had had something to to weigh against this was an eighteen year old girl who suffered from severe mental illness and brain damage as testified to in post conviction those are serious mitigating factors and i called this court's attention to sears v upton from the united states supreme court which was a rape kidnapping that traveled over three states and some mitigation was presented the united states supreme court said we can't exclude a finding a prejudiced just because some mitigation was presented we find that the jury in this case was presented a picture that was inaccurate that significant facts of this person's life were left out and that that could have made a difference in a case with extreme aggravation that the standard could or there's that they found that probably yes and that's what the supreme despite the fact that there were some pretty severe aggravating circumstances aggravating circumstances in wigan's were the attack of an elderly woman who was drowned in her bath tub and yet the court relying significantly on the fact that counsel failed to uncover evidence of the defendant's history of sexual abuse and highlighted that sexual abuse found that there was a reasonable probability that the jury could have come to a different outcome it is possible in this case and in fact given her age a probable yes i'm sorry i'm going to make a yes reasonably probable there's a reasonable probability i'll never do there many scenarios that possibly could have been but counsel through their own lack of preparation cut themselves off from a very rich mitigating case and in fact another aspect that would have been significant is that dr mccoy advised defense counsel to bring in the social workers and juvenile justice workers from north carolina who all testified in post conviction that they were willing to come testify because they had seen the tragic situation this girl was in they had tried to intervene they wanted to and they saw positive things they saw potential and that's really the tragedy of this case in addition to the tragedy that took place is that had ever seen all capital cases should have bad aggravating circumstances this is the that this is just these orrible horrible horrible i recognize that a gating factors even if you add a few few  through her mental illness and the history through some disinterested witnesses and well actually do or would do that if you just added a little bit more of sexual abuse a little bit more a little bit more of that that would really  there i guess that's your argument there is no hard old robert for me to see just just because of the facts so there are no automatic death penalty cases and had this happened a few months earlier when she wasn't eighteen then the mitigating factor of age would have weighed so heavily that the death penalty is excluded and so the age in this case would have weighed very heavily the fact that disinterested witnesses would have talked about how she had a history of being unable to control her rage would also have weighed heavily in corroborated in the expert mental health testimony there is no automatic death penalty in this country no matter how bad the facts are and i encourage this court to review the facts in cases the supreme court has found a reasonable probability with more than one victim her if it facts it happens and in this case it could have happened there's a reasonable probability it might have happened had counsel white of her would have it would have happened counsel for both sides done a tremendous job and this is pretty difficult very difficult work mr fernald think fun court appreciates the service thank you thank you coun