declaration that he believes quote the only viable theory of defense was diminished capacity the california supreme court except it is true they tell so failed to investigate and present a valuable this stage of the proceedings in the supreme court is accepted as true though not look it was except it is true is that evidence would have been presented we don't accept as true the fact that the evidence would have been there's nothing in the case law that says their aggravating evidence talk about the crime with mencken they talked about the crime here they talked about opinion they talked about everything and in response counsel did response to all of the aggravating evidence siegel's opinion once again but the way they're also looking at it not only can they not get a death verdict they've got an improper briggs instructional error being added to the aggravating side they've got an improper special circumstance added to the aggravating side for financial gain  and they still still cannot come up with it so done anything that they accept all this is true with the outcome would have changed that at all that's number one number two had counsel not done what he did  residual doubt which was never considered in trials two or three that close and then we have mr burchfield who arrives for the rd trout trial and announces to the jury after conducting no investigation without any strategy at all he announces to the jury that mr montreal's upbringing was normal it came from a normal family without any investigation and referred to his background as being normal ordinary and absent any explanation as to what his background was  a qualified expert qualified expert st and foremost would have presented an opinion that was contrary siegel's that he had the mens rea to commit the crimes number one and number two how do you been prepared properly and  get a confession from montreal that he stole pennies from mr ramsey that's number one number two months he'll return to the gas station with his beer in his hand no pennies in his hand and nothing in his pockets that testimony comes residence if that's where he was coming from that he had it in his hands or his pocket there's no evidence at all he was didn't have it now if they're if they're stating that the california supreme court on direct appeal is stating that he confined of that record that's why this this claim of who is raised on here would be broader than that and i am just hypothetically if we disagreed with you about the ineffective assistance claim at the guilt phase and we start looking at the penalty phase argument do we have a problem with the idea that the guilt phase jury found the right meds re add how does that affect your argument that there should have been more are they basically bound by the earlier finding or is there something more that the penalty phase could have taken from that evidence the other i mean the penalty phase well st of all it's only phase one when the jury should have been made aware of his people don't like drug abusers people don't like drunk driving there needs to be an explanation and again not a justification for the behavior and people siegal portrayed a picture like she was a wild party guy that's why he was doing it so this goes to the childhood evidence which i agree is very compelling i was just wondering about the arguments that have to do with a better expert on p c p or a better cross examination of  and if you put him forward the state had no burden of proof on diminished capacity they didn't need an expert they went aggressively and affirmatively to try to take out the obvious as both dr siegel you came up with the exactly one hundred and eighty percent opposite conclusion not only the or only defense available to mr moments he'll at the guilt phase was diminished capacity and they didn't put it on the fact that the state got no burden of proof of putting that on they just try to take the offensive and out and say that he knew what he was doing because most reasonable people that read about the actions of mr m world's greatest trial lawyer i've tried cases maybe civil cases any preparation on this and it's all in the record right in front of him henrietta's testimony the money was in his pocket when thinking about what's the nature of the crime there's not a nature of the crime continues to bother me you know the jury is allowed to think that he that he stole money out of mr pocket and that that was a motivation for the crime when i just wasn't true and the easiest thing in the world for a repair lawyer had virtual mint prepared would have been to demonstrate that siegel is telling of a false narrative and that undermines both goals diagnosis but also undermines just  trial while they're deliberating what they asked for we want to reread to placebos testimony they heard his testimony they saw his demeanor they knew he was going to get out of jail free card they knew he read discussion penalty phase trial what can you glean from the st one we know we know the following that the jury after hearing all of the evidence we think there was plenty of evidence here that council was in effect how do we how do we really knew they're finding their implied funding that they didn't make that even if he had been right now i look at all the banks needed and those facts suggest to me that there's a reasonable probability that the jury would come out different so if i were sitting as as a judge on the supreme court of california i might have found  ash in that same pocket when they left the home the only cash he had of this person was not the cash in the pocket of his shirt that was not taken during the crime but there was money that was missing from the person that evaluate the plainest most of the crime against various sorts of mitigating ideas and it may or may not be a sort of aggravating felt aggravating circumstance in a formal sense but the jury always looks at how bad the crime was as they're trying to figure out what the penalty is and if the crime was well he was high on p c p he was totally out of his mind and it on impulse is let the guy's throat a little comes back out and babbles about beer that's one thing on the other hand would head it with in his capacity some money in the guy's pocket i'm going to take the money out of the guy's pocket i'm going to take and i'm going to slit his throat if i'm a juror iow if i went those two crimes very differently  this person had a very sympathetic background and is safe in prison when going to the reasons to not give someone the death penalty why he said that because again and personally i don't find that evidence the did not come in about you know the pesticides and his father maybe engaging domestic violence against his mother i mean the reasonable probability i don't believe so because i think that the evidence lack of capacity was so angered by the evidence of the circumstance of the crime and also is that understanding of the crime at the st penalty phase when the jury actually heard the guilt phase so it might actually have been very much to the advantage to open up what happened in the gulf because at the guilt phase there was one fairmount of doubt pocket you have a citation to the record for that front pocket testimony now mr senior you decide to preserve ten minutes who we took away all ten minutes was a little bit let's put a five minutes on the clock and then we'll see what happens ok i did just want to respond if we don't we don't want to cut you off prematurely in a case like in there two dollars in one pocket ten in the other he pulled out both pockets then he went to the t shirt pocket peeled off a twenty gave him the twenty ok and you're back up to the top the twelve dollars is not testimony about the twelve dollars is not that it was given to the grandson but then he looked in those pockets and saw that he only had well so he went to his shirt off wrecked and there's no further discussion on what he did with the twelve dollars whether  record seem to suggest that at least twelve dollars that the victim had before him wasn't found on him later now and the records quite clear that your quiet killed th someone who's sort of this thinking clearly on the i see money in the old man's shirt pocket i'm going to kill him and i'm going to take the money compared to somebody who's off his head on p dr siegel that he saw money in the old man's shirt pocket he kills him and he takes the money and that evidence is probably safe false i can certainly say deeply contradictory and the jury d you take that aggravating evidence off you take the financial gain aggravating evidence off the scale you've got a briggs error and the st really end up with a hung jury the nd when you end up with a deadlocked jury where the jury says in writing we're not coming to a conclusion an aggravating evidence went uncontested in trial one and largely on convention testing drugs too and they were again not able to get death burdick's that it wouldn't if there isn't an inference that it might have been different if you if you had gone and found an expert properly prepared the expert and presented testimony including all the mitigation social history totally taken out as the the robbery motive and then going to all the pharmacological testimony which is he