year two thousand and one the jury that sentence into death was told by the prosecution that essentially this was simply a rotten human being who had committed a horrible crime and what the jury never heard was the truth about who keith nelson was and is many mitigating circumstances is life the jury never heard on disputed evidence that he suffered from significant brain damage centered in the frontal lobe of his brain injury never heard that he was sexually abused repeatedly as a child beginning with a stranger in california including various boyfriends and other men in the house of his mother deficient for failing to conduct an adequate mental health investigation the second finding of deficiency when i say in effect i'm talking about prong one of the strickland test the second finding of deficient before metz was that counsel advised mr nelson to refuse to cooperate in a mental health examination to be conducted by  findings that i think are are not basically challenged by the government that there was deficient performance here and the reason the jury never never learned this information is because dr will ignored red fifty five hearings four days of hearings and the defense presents evidence from a from recognized and reputable experts that somewhat ironic way dr martin how was one of the two doctors that mr nelson refused to see five or six years earlier in advance of his trial and dr of the damage is not one hundred percent clear there is a history of closed head injury suffered by mr nelson through childhood and into his adolescence or young adulthood and dr testifies that even without loss of consciousness those going to have significant neuropsychological impact and cognitive impact and then there are the circumstances of mr nelson's birth  he was second born when the birth was difficult he was hospitalized for more than a month following his birth the medical records introduced at the twenty two fifty five court but by the united states supreme court has significantly mitigating evidence and i'm thinking why what's the argument to the jury that he's not as responsible for his actions is that the argument of what would be the solution you are going there is the suggestion would be that somebody who goes through life was brain is damaged whose ability just to think things through is compromised and that was the will happen if this plan goes forward and therefore he's compromised in his ability to think things through to take steps to say i don't want to do this i'm not going to do this and this is not contradicted i mean this is not a matter in sears worsens upton for example in the u s supreme court there was an argument between the different experts and the government experts  confidence in this invert and what a single juror had changed his or her vote had they been presented with this rich picture this is the mental health piece of it but also the traumatic child other then death if it's eleven to one for death the death penalty cannot be imposed there is no new trial and they sentencing function revert to the judge  information or not given this information defense now well because they had done such a poor job explaining that he was just fine based on his premature birth so there's no  respect for especially suggest that there is no dispute among the experts that mr nelson suffered from the same combine of cognitive deficits and brain damage that testing that had been administered to the defendant as terribly significant in terms of his frontal lobe damage and coincidentally point out to two particular testing one called the droop s t on those chests and even lower in other tracks of cognitive functioning and brain function supreme court felt that the failure to present that in in puerto converses mccollum the court faults the trial judge for not taking into consideration the impact that prosecution probably now called by the defense and an expert retained by the defense testified that they are in total agreement that mr nelson in fact suffers from severe and significant brain damage it allows defense counsel to say to a jury we don't know where this came from it's probably related to the circumstances of his death but it certainly not his fault it's not something of his choosing but his brain is damaged he does not have the ability to think that a person without a brain damage brain has you are being told by the government that the only choice here is death we are asking you to the next step which is to lock him up in a maximum security federal prison for the rest of his life and that is the alternative to the death sentence and that is sufficient if we were to agree with you that there's prejudice here wouldn't the appropriate thing be to remain and for that evidence to be presented if you were to agree that there was prejudice then the remedy matter what if anything that concerns me about this case is the district court's finding that the trial lawyer was strategically deficient yes or in an effort to set up someone like you seventeen years later to get the sentence vacated and then stand here and say if the government even chooses to proceed with a rescind saying and in and in the opinion as i understand judge guide hand cited the same lawyers tactic in another case where the district court did vacate the sentence and they and the government did not choose to pursue a recent saying and so he's going to show up with mental health problems or not but the idea being well here's what i'm going to do i'm not going to do mental health testing and i'm going to hope that if you get sentenced to death somebody will do mental health testing down the road and that will determine that he has significant mental health problems and maybe some court will rule that i was in affective so he gets to do it all over again and well there was no finding that johnson case you're talking about the angela johnson case out of idaho there was no finding in the angela johnson case that this was a tactic no there was a finding that it was in mining families ineffective in the outcome was that she ended up with a life sentence case and the fact that the government did not choose to receive death is just a decision that the government reached for all of the reasons that the government hacks who it makes that i don't want my concern is the judge said the attorney in this case did it strategically so that the if the sentence were death he would have this opportunity later and and for all the reasons the government decides it might this is to me the essence of in effect your dissonance of countering this is true i would profit is probably not an ethical strategy but it may be effective in the sense of it actually working i've never heard of somebody doing this and happened here and that raises the question of what if it's offensive what should we do about it that i don't think there's any evidence in this record that supports that the idea that he quote unquote did it you know angela johnson s trial or not at all that arguably that makes it worse we have a credibility finding from the district court that he didn't believe barry and i don't think it's it's it's supported by any evidence i don't think it's supported by the angela did mr nelson fight bravely in any battle anywhere but did he do anything ever and is alive to commend themselves to anybody this is not porter against mccollum he was fighting it well because what the supreme court found was that there was readily available mitigating evidence of brain damage that was not presented and that was ineffective assistance of counsel and prejudicial which is it is just fall off the rest of it is more evidence  this rises to the level that it undermines our confidence in the hot come at the penalty phase there's no standard that comes down that you cannot just have to decide these things may decide against you you know what's going to happen your own next hope is in the supreme court well i'd rather not be on my way to the supreme court on this issue i think that the line of supreme court cases that talk about the importance of mental disorder in defect as happened in this case unknown mr barrett in which you have events in the record that this was the record in the evidence is that mr barragan is a season of practitioner in the capital hey b s area he knows what he's doing he did it for years for missouri state public defender system he went out in private practice he was sought out as learned counsel throughout the region missouri kansas iowa whenever a federal death penalty case came along subsequent to the hearing in this case he's been rehired by the missouri public defender system in charge of their death penalty litigation you look at that in this case rather in conjunction with johnson it's important though there's another lawyer that the judge got i was aware of who was a protege jennifer brewer in the record sometimes jennifer hearn and she got married during the course of all this litigation in three defendant went for post conviction relief for the first time she confessed err on either herself or a co counsel as mr barragan does here when you look at it not in the vacuum of one case but in the totality of the cases that they're representing people good in the western district missouri or in federal courts in general it's clear that mr barron knows what to do he knew that mental health evidence would hurt him he testified as such he said that in his experience that if the government was able to take a mental health examination and put his client in the crucero bowl of that investigation and do the investigation as protrude through interviews that the evidence would be the last thing the jury heard and it was absolutely devastating to him m that he then engage in a campaign a mill kerry campaign a strategic withdrawal or retreat so to speak fighting if when how where or if at all a mental health examination would be done of this client that information is all very important understand why the judge con judge gaetan talking too quickly excuse me why he chose to believe and ultimately rule that mr bear going to engage in a strategically deficient strategy nonetheless does that lead us though i mean in stric terms the judge said even though strategic could still counsel subjectively on reasonable performance and i suppose he thinks the strategic activity just has to be handled by an ethics board or something it doesn't really factor into the analysis as far as i can tell i think ultimately that's correct your honor i think ultimately the conclusion by judge gaitan was that there was sufficient performance as it related to the mental health investigation and the question then became more or do you think it should somehow factor in i believe that it's my position i have to defending judge guy tang's order he found it we argued that it wasn't an effective performance because of the strategy employed well to merely judge gaitan did not agree with that position though he called it strategically deficient he did say it was deficient the united states position was that stratagem it was not deficient he chose to go down a certain path because he felt that that evidence would hurt him he chose to not use evidence that he felt would not help him at the trial effective not because it was an intentional sandbag but because he reasonably conclude it would not help that's you know what you're saying yes sir it is but you're not really  appeal pushing that as a reason for affirm and so you're i don't think we can based upon judge got tonge order it's certainly within the body of the record in this case and it's the position that we've taken consistently throughout but i think that you can look at it and importantly through the prejudice through in detail the evidence in mitigation that was found by post conviction counsel and put into here into the hearing on the twenty fifth and then he really weigh that against the evidence and aggravation and concluded that the new evidence in mitigation was not sufficient in his opinion to undermine the confidence of the jury's determination that sentence of death was appropriate and i think it's very important when you look at that to understand that he did do what he's asked to do he really weighed the evidence  an undoubted lee true that government expert is case dr dan martell nero psychologist found brain damage but what just because there's a frontal lobe brain damage does not mean that there is correspondingly excuse behavior dr gert tried to come up with these very pretty pictures as he admitted in cross examination to show the scale of the insult to the frontal lobe he had ultimately admit that the scaled system that he used was a unit of scale and therefore meant nothing implication wise dr markel on the other hand tells you about the frontal lobe frontal lobe essentially governs executive function in human beings and often that's referred to as impulsivity as judge smith has said this wasn't a crime of impulse this was a crime of planning this was a crime where he'd tried it before and when he chose an adult victim when that victim was he was unable to subdue her after putting the handcuffs on her wrist when she went limp and was no longer able to drag her teeth nelson looked at her and said don't look at me sleep or i'll kill you instead having had that failure over the next week he told his coworkers about the need to pick a her he made an effort to pick her up and draw daylight it by ducking down in the truck in getting her into the car and speeding away he took her across state lines to a secluded area in the woods where he could do the unspeakable things he did to her on damage executive function to suggest that because you can't review the plan is an improper allegation your honour's because all criminals commit some play and i would just suggest that everyone that comes before these courts has brain damage sufficient to mitigate whether they should be sentenced think the answer is no in this case he wiped the truck down he took the truck away at night and abandon it he went back later on and try to get away from the police and hide and ultimately because he effort he was apprehended nothing about what he did on october twelfth one thousand nine hundred is it relates to pamela butler and within the record tells you that he has impulsivity issues or an insult to the executive function in the way his brain operates he might have a criminal mind but he doesn't have a broken one and i think that's very important because that's the evidence that judge gaetan had before him when he heard from dr martell who as a under oath said yes there is brain damage  but this brain damage does not in my estimation indicate in any way that mr nelson suffered from impulsivity concerns all of those are very important when you analyze the prejudiced analysis that judge g prejudice there's no indication that the jury would have meant turn a different verdict they were exposed to seventeen witnesses maybe sixteen witnesses in one video or audiotape and over two days to talk about what a life that mr nelson was and how he lived his life they heard the wall of conditions he lived in they heard about his mother and the horrible upbringing he and his brothers had the jury heard about done a better job your honor i think they heard a substantial amount of evidence could they have heard more there's no doubt and i would argue in this case or any other case when you're given years more time your and inevitably if you're working the case can find more information and i would suggest to you that's what's happened here postcondition councils had years to build upon the work that was done in one thousand nine hundred nine to two thousand and one when this case was tried and they've uncovered additional information but not powerful new evidence of actual innocence as we talk about in twenty two fifty five i think that the presentation of the words or mirror six months continuous or even a year would not have made any difference here i'd i can't say that i can answer that because i don't know what stage they were and what they were doing  can tell you that i think they've got a pretty comprehensive job on the seventeen witnesses and the evidence that was presented back in two thousand and one when this case was tried before judge got on and it's my argument that that that what they did was an efficient one you find it testified or joining fifty five hearing he said that he knew he could have asked for more time and chose not to mr hunt knew the same thing and chose never to ask for a continuance ms brewer knew that she could ask for a continuance and chose not to when she did the case she was only testified that i could have asked another continuance because i was under an order from the clerk's office of the eighth circuit that no further continuance as would be granted when she was asked you were under that order didn't you ask for and obtain a second continuance after that or another continuance i guess the better way to say it and she said of course i did get another continuance mr barragan when no one told no judge told him he could or couldn't get another continuance he chose not to and said that he thought he was ready in retrospect now he says that maybe he wasn't ready and i would suggest you that's part of stratagem as he said in his own testimony if a client's sentence of death is reversed and post conviction else is it gives that client a second bite at the apple you see him use the language i dropped the ball that language was used in this case that language was used in angela johnson case and i was ms rouer use the same language all of that when you put it take it out of cut the vacuum of a single case and listen to it in a totality the circumstances tells you that this is gamesmanship the government has always alleged in an effort to give their client another are there any cases given misguidance on the concept us pretty deficient your honor i'm not aware of any i'm aware of course but strategic decisions generally are getting great deference in twenty to fifty five proceedings i've never heard a strategic deficiency just because of the totality the circumstances it was important that we argue that because we thought that influenced the decision making in this case and we thought it was important that judge guy tom be aware of it and ultimately he agreed with that conclusion i'm not aware of any case law however that would allow to give guidance on how we handle that well the supreme court says in this situation we necessarily have to speculate as to the effect of the new evidence we have to reweigh the aggravating evidence against the mitigating evidence that was i guess introduced of the first trial plus the new evidence that would have come in but for the deficient performance i believe that's correct your honor i think the standard you have anything else to say about how we should speculate about that i don't know how to other than to do what judge gaetan did in this case i think one court reiterated that as recently as last week of evidence that have overcome the aggravation that's arguably problematic i think that they want more no amount of evidence and one phraseology certainly could be problematic but i think the read his order the fifty three pages in context we don't have to necessarily adopt his reasoning i guess i'm asking you i'm not i don't believe there's that's true weighing it i do believe you have to reweigh it as he did i believe you have to reweigh the case in aggravation in mitigation with the addition of the new material which he did in his order and i would submit to you that judge gaetan did so correctly when he reweigh and that that new evidence when you look at it in its light as it relates to the evidence before the jury when its weight against the aggravating evidence unanimously found by the jury that the conclusion that during reach was the proper one i will tell you that when you're talking about this when they're talking about an inferior mitigation investigation stretched out of my or or just the sort of my or correctly point they put in two minutes of mitigation testimony we're talking about two days here and seventeen witnesses so there was a substantial presentation in this case i would have to go through each of those case and say was there a substantial presentation or were there was a lack of a presentation and then they post condition counsel found a person a substantial amount of evidence i believe in this record based upon the presentation that was done by mr berrigan in the case of mitigation over two days in context with the new evidence when it's really weighed against that case and aggravation the conclusion that judge gaetan reached is the proper one that is that no reasonable juror would disagree with the confidence of the opinion the original jury returned in this case the no for the questions i think i will sit down thank you first o that's why i think he used all your time that would give you a minute if you heard something you ok thank you very well writers and so if the government seriously pushes this position there mr bear again made a deliberate decision to throw this case so that his client would be sentenced to death he was deprived of the assistance of counsel period counsel does not sign onto a case to have his quiet receive the worst possible result s  because the defense missed powerful mitigation evidence they missed the brain damage and they missed the more horrendous aspects of his childhood including the sexual abuse