good afternoon ma'am please the court the district court's care in this case is twofold first they've made iranian findings of fact and second the court has applied the wrong legal standard because they did not have the benefit of this court's ruling and matthews versus parker which is found at eight o seven f third seven fifty six twenty fifteen we've requested an expert for two purposes one is to have funding for that the district court states that mr foley does not have a long history of head injuries and that based on the state court rulings and other stages of this case the evidence is  persuasive mr foley has had no less than ten head injuries from infancy through through age twenty one three are documented by medical records and the remainder of the head injuries are documented by the testimony an affidavit from his mother and his brother when he was an infant when his m below ct fell off his mother threw him across the room she was a very young mother and inexperienced with infants and simply did not know what she was doing at that time what was the basis for that reaction just out of curiosity  record she she simply didn't know what she was doing the response to not knowing how to care for a child by throwing them across the room that was her response that's what she testified to foley was four years old he fell from his high chair through a window and this is documented in her affidavit in testimony as well when he was going to go through each one these are all the test imony the mother yes of course we've read it but what's the upshot of i'm sorry what's the upshot of that we see the whole ok normal c t scan ok yes that's correct there is a normal sweetness in the record i apologize to the court i'm having a little difficulty hearing there is a normal c t scan however we cannot discount the fact that there might in fact be traumatic brain injury even though that c t scan is negative there is your words we're we can't discount that there might be in the desert a c t scan even even just because there's a negative c t scan doesn't mean that there wasn't trauma with the neuropsychologist two brain injury that we want the nerves psychologist to do della's kaplan type testing to test mr foley's executive function to determine whether there are impulse control issues or aggressive aggression issues that may in fact explain his behavior in this case but why would that lead to clemency i mean if you have somebody who has documented problems that just support their dangerousness why would that lead to clemency well certainly even in the district court's order they had to acknowledge and everything's possible mitigating in this is the book the good news for you and the bad news for you the good news is an expert on anything potentially role is potentially relevant because clemency allows you to consider everything it surely can't be the case that you get an expert whenever you want or for that matter seven experts that funded by the federal government and that and that's not what we're asking the court for as this court stated that excuse me stated in matthews correct it has nothing to do with the prior capital convictions of the four individuals that's correct so what's it going to do i mean if you're if you don't have a theory for all six i'm not sure i'm court one class clemency proceeding so we will have clemency on that's correct we will be proceeding on clemency on this case and first now the theory which is why wouldn't it be about all six i don't understand that and theory it could be other it's not a very good clemency application to say the death sentence shouldn't be in force for four or five of the murders it just doesn't make any sense our expectation would be that the ballistics expert will support mr foley's contention that these the incident in this case was an act of self defense or perhaps imperfect self defen would support that theory as well now with regard to the nurse psych if the testing revealed that there were impulse control what you're going to do is a strategy that if you get these you then have the for the murders presumably the neuropsychiatrist testimony i can't imagine you're not going to ask them about all six and how that affected all six of them what's going to be mitigation as to two in terms of whether or why you committed the murder self defense or actual innocence doesn't do you much good with the other four so i assume are going to want experts at that point for the other four murders because it's an clements there's no such thing as too clemency applications of the first one doesn't work that's correct so you're of course going to do all six murders so what's the strategy you get another expert then no the strategy would be to use the expert that we have here so in the rest of the other four murders you're saying you have no other clemency mitigation strategy other than the neuropsychiatrist we aren't even close to considering medication strategy in that case because we're focusing on this case right now this is not where the story you're not willing to say there's just not willing to say that you're just going to need two experts will there be only one i understand you can have two clemency proceedings for for a particular case will there be let's say you bring this and four years later these other cases are final will there be any still alive would you be bringing or are you allowed to bring another petition with respect to these other convictions and sentences another petition for clemency yes absolutely ok we are allowed to do that ok so that's presuming a lot of factors beforehand that he's still alive individual no one will talk about or think about the other four murders that seems totally bizarre well again worse the governor's going to fit factor in to the decision it's been six different capital convictions you only can implement one of those sentences so you can have the whole thing debated i'm not expecting you to tell me your strategy but what i'm assuming is that if you win here of course you're going to want to experts to talk about the other four murders i can't imagine any other approach that's what i do have are your shoes and i'm just trying to say that shows one of the problems we have in the district court has with this case but it would seem to me that at least with regard to the nurse nurse psychological expert he could be used in the second case why i asked whether you would have any strategy about the  and wherefore as to the four murders the way you do as to want to maybe two of these murders other words was it self defense was he actually innocent that someone else commit the murder right those types of things right and the answer is you don't know go what part of the judge reads decision what page do i go to and look at it and say various the legal heir ok we start on page i'm referring to page idea number six ten and document one forty two judges fourteen of his opinion do you have them numbered that way i can see the sixty and i'm just saying to my colleagues it's page fourteen of the opinion so then tell me what's the where's the on that page legally ok so at the end the opinion the court says fully does not have a long history of multiple head injuries clear i'm a i'll try to talk louder you tell me if you're not hearing me but i was asking for legal where's where the legal errors in ok opinion so that would be a factual error so where are the legal errors the legal   lies where the court says on page six eleven that foley's competency and mental health have been discussed and analyzed and the judge numerous times before this court and others and his arguments have consistently been found to be without legal merit in fact the record is replete with multiple findings and then the court goes on in the next to last paragraph and says all of this evidence that's pretty been presented is simply unpersuasive the legal error is in relying on the numerous as the court states the numerous or the prior  findings throughout this litigation and so for example the state court findings about whether it was recently necessary to get that's correct then ok so so i think i understand what you're saying and i didn't i didn't read the district court decision to say it's claim preclusion or race judicata i don't read the decision to say that what i do read the decision to be saying is we're not the first people to be looking at this that's correct and i think that's i mean that was a relevant question for him and i guess i feel like it's a relevant question for us particularly on abuse of discretion review if a state court was asked a similar question about a nurse akai a tryst or a claim reconstruction expert or murder reconstruction expert and they thought it was a reasonably necessary was not relevant that's that's seems to me it's relevant matthews says that the prior rulings do not foreclose funding  because it talks about clemency being different than litigation and that just because you're not able to meet a particular legal standard doesn't mean this expert is not reasonably necessary for purposes of clemency because the governor's discretion as to clemency is unfettered and so whether or not we've been able to meet the legal standard for an effective assistance of counsel or failure to have a competency hearing it doesn't  it's not the decisive factor and you're matthews and i would contend that it's not the correct legal standard to apply the other important aspect three court was using the same legal standard didn't the district court specifically recognise that just because he the opinion the court doesn't offer any explanation for its ruling other than the erroneous factual finding that i pointed you to and referring throughout the opinion to you well he lost here he lost he lost here so therefore it's an persuasive i found no other explanation for the court's ruling than the prior rulings and this litigation the other important aspect to note about this case throughout all of this litigation mr foley has never been evaluated he wasn't evaluated for competency he's never been evaluated by casey p c which is never a part of his defense to any of these murders that's  correct but madge and i forget whether whether i know this that ineffective assistance of counsel has been examined for food to bring up is these potential mental issues  the way that the eleven forty two if she was framed in this case was twofold one whether he was competent and two when their counsel was ineffective for failing to put on the testimony from mom and brother in terms of mitigation and the court found no errors there was no ineffective assistance are human terms of putting on mitigation evidence the capital sentencing hearing in related to psychological illnesses that's correct it was just not even argued it was that that council should have investigated his head injuries was never argued all th but in as part of part and parcel of competency i'm just thinking there had to be some psychiatry of psychologists testifying i mean they had to be talking about his mental function in any case well now competency is different from what we're talking about here in turn know that we know that but judge cook's making the point that how can you have a more whether there was prejudice for not raising it without someone examining him to say there was a competency issue and if there was a competency issue that would relate to this it's not the same inquiry but it would relate they said that com wasn't a competency evaluation was not necessary because he didn't demonstrate any behavior that would put the judge on notice that there might be you know it was a little just of ineffective assistance of counsel where yes that's correct and you're not claiming he's incompetent that's correct but was just i just i'm from asking the same just question just cookies but i'm just i'm curious about this point at the ineffective assistance stage so your answer is the government's answer at the ineffective assistance stage which one would say is your client's lawyer should have investigated whether he was competent to stand trial ok so you have a legal standard would someone normally do this and you have to also show prejudice if you can't make that second argument without someone examining the individual and that's what doesn't make any sense to me about there being no psychological examination ever in this whole record there's no psychiatrist report no ecologists real how did they try to argue show precious without without that information and that's why i mean you still say they made the argument yes it sounds like that's that's where we  neuropsychologist girlies never exhibited any psychological problems with that they could only explain why courts would deny an expert or or funding if counsel raised it that way i mean i'm asking for your help with the record i don't know it as well as you but i take it that courts listen to a plea for funding and and denied it because typically what was the underlying i don't know but i'm thinking it had to be there is no there is absolutely no evidence here he ran a business he ran a trucking company he was very functional person and didn't even raise that point  wrecked about that they did not they being post conviction counsel and it wasn't until we got into the later stages of this litigation that medical records were found discussions were had with mom and brother about the nature of the head when you say you combine those two as if they were about the same but as we understand it there's one only one medical record and it's a c t scan we only have my herb that available for mr foley it's page id numbers four hundred eighteen through four hundred and fifty eight and they document three head injuries one being one is thrown from a horse and two car accident any of these medical records yes medical records very verses mom's testimony i'm just trying to keep those two separate verses my mom's testimony and these are separate medical r and parcel of the c t scan that that you've referred to the c t scan is in with those records as well and then sorry then go ahead mom's testimony is attached to one of our other document i don't seem to have that in front of  so all of this is to say to this court that we think we have met the standard that was enunciated under matthews we think that there's sufficient evidence of head injuries and that we've provided sufficient evidence what do you do with this point i mean if i were the district court judge i might have said have you know it's death penalty it's clemency i'll give you one but not the other so i could see myself doing that but that's not the question force the question is not whether three of us think it's reasonably nice the question is whether the district court judge either made a legal they're thinking about it like saying i didn't have authority to do it or abused its discretion in the choice and the problem for me in this case is if we call this an abuse of discretion i don't know when it wouldn't always be an abuse of discretion to deny expert fees because this goes back to the point that so many things are relevant to clemency which helps but it also hurts because it suggests you'll always have room to argue that it could make a difference so that's that's my problem ok when i would suggest to the court is  it's it would not be an abuse of discretion in this situation as is explained in fountain barry versus mitchell where there's already ben an evaluation and they're requesting funds to do a second evaluation and they can't demonstrate that there's any benefit evaluation we're asking for something that's never been done so as to the accident or the murder reconstruction that position would suggest there was not an abuse of discretion with denying that because we not only had the testimony by the non expert at trial but we now have this report so one of you would say that's non abusive i mean how would that be an abuse of discretion to focus on that one in this case it is an abuse of discretion because the district court's finding that the non expert gave the testimony that mr foley wanted to put forward in from the jury is not correct it's not supported of that but the district court also acknowledged that the experts you want fun funded to do more studies has done a study but what else would would be added i mean this this up with david is pretty comprehensive and it says that he looked at more than what you say you looked at so what else would be involved in this the expert would has recommended that he be allowed to do to computer animation and diagrams and that would be beneficial and explaining to someone who is not familiar with the facts of this case how it is that mr foley's theory his explanation of self defense and one victim shooting the other how that is possible so that's how it's possible or probable or how it's doing the expert does not state that in his affidavit he doesn't state what the additional things would be but that is in our motion for expert that would be helpful and corroborating and validating the sexperts opinion and it would be helpful and allowing the governor to understand the facts of this case better and mr foley's defense what is the procedure actually look just some states have a board and we can write a social history life history we can prepare documents in writing with attachments whatever and submit that to the governor for his consideration we can do i mean i've got the governor since they're you know personally reviews of it now i mean that's all we do is take it to the governor's office and drop it off and beyond that we don't know anything big three that's correct and two of them were quote volunteers in other words we're not objecting to the science that's correct however the last one for real was in ninety seven that's correct and that's because of the lethal injection li not because we conjecture litigation is not go back to ninety seven pretty confident that that's really been about space right which is kentucky right exactly and that's still being litigated at this point i can tell you that i filed  six or more a clemency petition swung governor bashir left office and we didn't receive anything in return on those presumably they were denied practice in our office to file when it went to governors leaving because you don't know what the governor's going to do so they may still have an eleven forty two pending or some other litigation that would present or prevent them from being executed but you're saying he's the only one that's exhausted everything no that is not correct he is the only one of my clients that success at everything but there are other so there are no execution dates given the moratorium that's correct