ineffective assistance of counsel of mr mcmillan at the penalty phase especially with respect to the evidence of abuse in the family and his use or i was sick of use of his psychological experts and if there is time i would like t trial court below did what this court has instructed should not be done it merely accepted mr webster's explanations at face value it did not conduct a meaningful evaluation of those reasons as this court  what should he have done that he didn't do he called her an explanation webster gives his reasons but she was the juxtaposed following that he should give an evaluation of his decision that the reasons are not know what the judge was thinking why believed and in fact it's hard to understand how he believed him when you look at the reasons given and the fact that those reasons i think in some cases don't even make make it over the  the death penalty qualifications them that the willingness to agree with the death penalty to vote for the death penalty was was really not involved in mrs produce exclusion mr webster told the court that he would have  two other black actors if they had been down the middle on the death penalty in terms of their willingness to impose if the law required as to mrs produce he admitted that he doesn't have any problem with the content of the discussion her discussion on analysis and the first one is the worst one which is that she used to live in paris california and he said i had trouble with jurors from paris and i have i am distrustful of certain areas that want to third stage now so i push it what you're saying up to the second stage that that if you if you assume that you don't need an explanation relating to challenge the facts of the case but when you say i have problems or areas of paris because he was it's fantastic it's fantastic in a way it is in a in a sense like his analogy to the victim of the trial that he had you know he said not a problem i have with with m was she reminds me of this victim in a case that i tried before and i don't and of course this person was already dead by the time he tried the case and so he's telling the court this victim you know she would not have been questionable under bason then that taints the other reasons you had because if any of the reasons are discriminatory the challenge is on cost and if i might like to move on to the ineffective assistance  the evidence dear physical abuse of mr boyd by his mother and stepfather and the sexual abuse that was rampant in the family the reason this is important is because of the supreme court's decision in wales which requires of ineffective assistance of counsel defense on penalty phase it requires more to really weigh the evidence that was presented in mitigation against the evidence that was available and could have been presented or differently so that in this court's opinion in spanking with the differences the magnitude of the difference between the evidence presented and the evidence that could have been presented weighed against the aggravating evidence for the moment that he did what you want affected the testimony at the penalty phase in several respects it would first have completely changed the penalty phase because the what the jury saw in the penalty phase was the first two witnesses in mitigation were the abusers that that would have caused the jury not to give him the death no i don't have to convince you that there's a reasonable probability a reasonable likelihood that one juror might have been inspired to sympathy if they heard that evidence and if they hadn't heard so there's no mystery about the question i ask you mr that did raise and i ask you that was because quite often and in the case you refer to the canned of aggravation could reasonably be related it was a violent crime and i think part of what the job is of the lawyer is to write in here was try to keep from getting caught well it's not clear actually but the the thrust of the evidence of abuse is to show that the person has severe problems emotional problems in this case mr woods that perhaps even brain damage as a result of the abuse being hit in the face and head to the base and and worse than his point and i'm not sure that was an effective way to do that but if you work if you are sitting next to your client and i'm seeing the jury looking at richard boyd and they're not seeing with your boy because the argument they're seeing charles manson sitting there where the challenge was made it was spelled out by the prosecutor himself describing the compton area as a low income minority community so he himself put on the record and  acknowledge he was looking at a factor that dealt pretty strongly with racial background in the defense attorney also said look compton is a community seventy five percent black and this course footnote any demographics and we also have a prosecutor who simply describing his experience whether he can say i've now identified what about people in paris are my problem what he cannot say they are all he can say move this job or that i don't i think that's a racially you troll reason to say they are from whites in my experience on these cases have voted against me and i've had trouble with that there are i assume non minority isn't what's it it's across the board so to speak in terms of my experience with these people from this area whoever they might be racially have voted against me in prior cases can i don't know why but honestly expressed the view of the jurors outlook and how the jurors going to approach a particular case that's a rational concern for prosecutors seeking very sure as you're talking about the penalty that doesn't answer the question painting that picture it's not his job his job is to create sympathy so the fact that they created a painted a picture which made defendant look and i think though that if you paint this picture you're going to end up with number one minimal you have to look at the average evidence that was presented and stuff the mother mistah father do not go away evidence normally that would be the case but in that situation mother father what stepmother were on the stand and disputed or if you will refute it you claim it was moved a few patients to be had the jury was not aware of  testified and the substance of their post as to monique is that this that was not the case whether the jury is going to fall on one side or the other what you have before the jury in the situation where you add this new mitigating evidence if you have a family to me let me ask the testimony of dr waters at the penalty phase where dr waters is asked if the boy is able to escape or get out of the institution will you continue to pose that kind of threat  certainly objecting to it would have done an appropriate tactical decision but if you follow dr waters testimony when this from milan got back on the on the offensive to question her well things he asked her about was for  ability to project future dangerousness and she told the jury psychologist simply or didn't do it so there are different ways of dealing with hostile testimony one is to object to if there's a baseless the other one it's there is to deal with that and undermine it on redirect which is what he did i mean the whole thing should have even been afraid of the jury to begin with i i understand that but in the in the ebb and flow of the trial process you cannot obviously control theories that doesn't happen on these various little small evidentiary matter how small in terms of on point but point by point by point i for one think the evidence of extra abuse may or means i'm not convinced the evidence of extra extra evidence of abuse would necessarily change the jury's verdict but here you have his mental health experts say this guy poses a danger if he ever manages to get out of prison well background understand why he comes to be doing now so whether or not whether or not he is somebody who will not reform and will be a danger to the conclusion i submit that the jury would have reached whether dr waters testified  not whether or not for years the only answer for mr mcmillan's point of view is number one you can't simply try and develop something about a person's personality and back around and pick out the bad stuff because it comes back even worse on cross examination but number two he wanted to give the jury an understanding of where richard boyd was why he did what he did and simply he was trying to get them to understand that he was not as you'll hear somebody may have wanted to get the picture of mr boyd as he was but he made no effort he he basically seeded that obligation to experts which he knew had an opinion that was going to prejudice the jury against the psychopathic deviant and who in the closing argument the prosecutor said that to the jury that i didn't cross examine this witness because i agreed with everything he said this this is a witness that in the knowledge that exposure to people like charles manson reinforces bad things vindictive personality in a sense he's like a time bomb he should be locked up in prison for life and without any effort but didn't when you compare the viciousness of the crime and his long violent criminal history and the fact that came before the jury that he was planning an armed escape from jail while the trial was pending and all these other things the result would have been the same the this this extra mitigation wouldn't have changed outweighed the aggravation in any reasonable juror's mind well looking although i won't concede that if you just look at the abuse and the evidence that could have been presented and you look at the cases like douglas and you look at stake which is you know which had much worse aggravating evidence even if you rea douglas for reversal the problem is i don't want to waste your time you get to your point but you've got two different cases you've got a case where they have usurped and the aggravation has some saying if you've been abused then that excuses in this ng you might do an aggravation because you've had a hard time and but in the in the one case where we problem it was because of the binding stabbing that had a relationship to the fact that this the stabber had been abused this case what he was it's required i'm thinking about the juror who has to use it and i'm wondering how you can argue the purpose is to get sympathy and judge calories needed it might inspire sympathy that's not that's a not under this course douglas