to violent content and x rated films and whose addiction depleted his family's new your income friends mother was no refuge she was an emotionally absent pre more bits gets a frantic who did not interact with her children and did not show them any love affection or care trial counsel in this case was tasked with representing fred who was facing the dark prospect of spending the rest of his life in prison without the possibility of parole because fred was not contesting his guilt counsel's primary responsibility was to thoroughly investigate and present mitigating evidence that would counteract the picture of fred being presented by the state and that would help the jury to understand fred's horrible upbringing and move the jury to show fred mercy counsel completely abandon as an indication that he lacked remorse having heard only one reason why fred's life should be spared and having heard virtually nothing to humanize fred and to refute the state's picture of fred as a cold blooded unrepentant killer the jury sentenced fred to the maximum penalty of life imprisonment without parole it cannot possibly be the case that trial counsel's representation satisfy the sixth amendment the state court however found that it did the seek or believe that a difficult childhood  de minimis without ever assessing whether counsel based that are legit choice on a reasonable investigation and when determining prejudice the state court discounted fred's difficult childhood as de minimis without ever conducting the requisite about you ation of the the available medication so because the state so clearly unreasonably applied strickland you know this court today we just need to focus on the dyno the question of whether there was a constitutional violation here and there clearly was  i'll begin with prejudice there is a reasonable probability that had the jury heard fred's difficult childhood it would have come to a different sentencing decision the jury would have heard of very classic picture that anyone would shudder at they would have heard that fred had a family history of schizophrenia a disease in which people have difficulty showing emotion and forming relationships they would have heard that emotion was not modeled or shown in fred's family and that to this day friend's sister recalls experiencing frozen tears where she was unable to express herself because she had been so used to being hurt they would have heard that friend's father or was it out of control alcoholic that he was in and out of jail that he took his young children who were still developing to view an x rated content that he would get in such explosive fights with his children's mother when he was drunk that his children over here and they would wait to see if it would get violent that when his father was going through alcohol withdrawals the kids would basically tiptoe around him trying to avoid a blow they would hear their friend's father was naked at all times regardless of who was around whether his children his children's friends of his children significant others the jury would understand that with an absentee father like that and made friends mother all that much more of an important figure but they would have learned that she was no better she was a schizo she was a pretty moritz gets a friend  she didn't interact with her children she basically just sat in a chair all day she didn't show them love affection or encouragement and she was always paranoid and quote unquote so the jury would have heard the fed is left with no one this is the kind of troubled upbringing that this the supreme court has repeatedly recognized is partly into a jury's appraisal of moral culpability in other cases we are the supreme court of use terms like nightmarish horrendous to describe the of people who are complete masses as adults in this case and if i understand this can correctly petition or blow was a reasonably successful adult holding responsible jobs raising a family and it wasn't until at about age thirty five or thirty six he couldn't that he could not cope obviously with the divorce from his wife heidi but for the last fifteen years maybe longer including his successful record in college he's a successful human being why is it unreasonable to think that that long period of success as an weighted the fact that he had done well in school and at work and the fact that he had stayed out of trouble it didn't valuate everything else and you know anyone who had heard the entirety of the of the medication would understand that you know anyone that has gotten you know it's been exposed to the behaviors that for there's been exposed to that is scarring and it will leave a long term impact on anyone the fact that he you know did well in school and stay out of trouble that is not inconsistent  also did call  has no empathy towards others and has an emotional disregard for others so that actually and for sizes how important it was for the jury to hear an additional and potentially alternative explanation for why he appeared to lack remorse the trial and why he lost control over his emotion we sketch they heard that his father was an alcoholic his mother was a paranoid schizophrenic he didn't have a close relationship with either of them but that was about it and you know so they didn't have the full picture and they also i mean we have to keep in mind what they were commissioned to do they had a so to go back to your honest question about you know how does this this case fit in finland the other cases where with the court described it as a nightmarish childhood you know any any case and particularly for a fact a kind of standard like strickland will rest on different circumstances but fred's case absolutely falls within the category of cases where the court has found prejudice because a lot of cases like griffin for example where the to defend prejudice founder the defendant's father was an alcoholic  no love affection or expression and the parents are alcoholics so there are per get into that is designed to demean your view to excuse for at least a many gate defect in the middle of the night he see my time is up if there are no further questions claim of ineffective assistance of counsel we talk about these claims of inadequate investigation in many instances and this is certainly one of to dispose of the claim is to look at reggie's problem and in this case approximately nine years after trial counsel's representation in the jury's verdict we have evidence that was presented in a post conviction hearing from the petitioner sisters and then i just have to take some issue with the characterization of that evidence you know first of all the sister made statements during her testimony to the effect of what she didn't remember a good deal of her childhood the fact of the matter is through the sister's testimony that mr lowe did not even live with his parents during high school but lived with his grandmother reportage where up while in high school he played football and wrestled and excelled in academics there was no violence in the sister to petitioner testified that she and her other sisters and petitioner would wait when he'd come home when he'd been out drinking because he was an alcoholic and there would be arguments between the mother in the father and they'd wait to see if it got violent and she expressed it testified it never did there's no evidence in this record at all of any kind of actual abuse and that the petitioners claim it and his sister's testimony boiled down to this contention that it was just a emotionally bereft environment to grow up in and as the court noted all these years after petitioner had left that home and it's also important to note the mother was diagnosed with schizophrenia went to shit was twenty six years old already a married man to the extent that there was any pre mortem biddy in the home that's somewhat speculative even on the experts part and it there's no evidence that to the extent she was pre morbid but there was any abuse of behavior or of deprivations of any of the essentials of living because of any pre mortem condition and in fact the record shows that the the mother had a part time job while the sister was in high school working at a cannery so just i don't know if showing an elementary school aged child animal house is stellar parenting but certainly not abusive in any way with respect to the x rated movies she said that one time her father took her to a drive in that showed x rated movies and she couldn't remember prove was present when that happened so she didn't even know petition it was there still remember anything about the movie i mean that this is just not quality testimony even for the purposes that petition suggest that it should have been offered at trial and so in these kinds of situations that the quality of the evidence is tied to counsel's effectiveness or ineffectiveness and years after the fact they do not remember every aspect of the private presentation and in many instances and this will be one of them there was much the trial counsel did not remember he testified that he did believe that he spoke to family members and that he also recollected that there was a sister but he couldn't remember any conversations that had interesting leave the record discloses that sister has three sisters that he was close with and they're all close in age and i think they followed one year after the other all the siblings and only mis testified at the post conviction here so she testified that counsel did not speak with her but we don't know what counsel did what conversations he had with other family members he believes he spoke with them counsel's presume to render a reasonable representation  absent any compelling evidence to the contrary so here what counsel did was he took the experts testimony and the fact that one of the experts the one that diagnosed antisocial personality  disorder found that he was operating under a delusional belief system that was based on his intense catholic faith and that was that without her knowing it if she was going to get involved with another man to became sexual she would be categorically an adulterer and his children would be living under the roof of an adulterer so that was by his account and motivating force behind the crime so so council presented a catholic priest was familiar with petitioner and another parishioner who had who was friends in the parish with the petitioner and they talked about his catholic faith and then counsel appealed to the jury to find that under this delusional belief system and the mental di parker testified that he suffered under that he just snapped when he woke up at three o'clock in the morning essentially put on what i would characterize as his murder suit that was a much more cogent and persuasive and focus presentation to get to the jury than to just throw out any tidbits of childhood that would in most people's well maybe i should say most people but in many people's experiences is not particularly uncommon many of us have family members and people that we know that struggle with mental illness alcoholism is certainly not an uncommon incidence in family life and without any evidence of any serious privations or abuse in this record council was certainly supreme court noted that it has consistently held that evidence of a difficult childhood warrants little if any minute gating wait you know we've got this long series of us supreme court decisions particularly in capital cases but not  limited to that treating difficult childhood evidence evidence as having very significant mitigating value zero in it and i appreciate that inquiry your honor and certainly the evidence whether it is significantly mitigating whether it fits into a reasonable and competent penalty phase presentation depends on the facts and circumstances of each case and so there's no indiana law your hon that categorically excludes as having mitigating weight background evidence it is it is the character and weight of that evidence as it weighs against the aggravating circumstance and out so there are numerous indiana holdings the discuss how in previous cases they have found that developmental evidence was not significantly mitigating the court in this case when it discusses that is discussing this specific evidence and very reasonably determining that it was his difficult childhood but that's about it he was really the victim of a they didn't spend much time discussing the evidence i agree one hundred didn't but i don't i don't think that it was a categorical finding i think that you have to look at the case and decide whether it's reasonable all the facts and circumstances inconsistent with stric question of the standard for coming here from here your honor i don't recall what the exact sequence of the court's comments were but but i found that to be a comment or prejudice which also speaks to councils obligation to have found this kind of evidence but it certainly was not a categorical finding that that evidence could be mitigating just because of the kind of evidence that was clearly if mr lowe had presented evidence of a very difficult upbringing that would have had somebody getting value but if it had outweighed the evidence of the b one aggravated which is  distribution yes and also i think from petitioners perspective there's a complete lack of recognition of the quality of this crime and the quality of the reflected premeditated nature of it  this individual would grab condoms before he left because he thought he might want to rape his wife before he killed her he was very matter of fact about his purpose when he woke up and put that suit on was to kill his wife he said he was going to fix her up which he explained  people that didn't necessarily understand what that meant that he was going to go kill her i mean it's a very heinous crime it shows a very calm cool inflected commitment to take this woman's life and he did it brutal fashion and so when you look at prejudice naturally the quality of the mitigation evidence is going to have to be strong to overcome that evidence of intentionality in the evidence of that i don't have any time left but i'll give you a minute opposing counsel has discussed the fact that there was no abuse and there was no you know no specific indicators that are as bad for example as wigan's could we imagine situations that are worse than friends sure you be a case by case of valuation of the totality of the available that efficient to determine if the jury would have been swayed by it there's a better than negligible chance that a jury would have been swayed by this evidence and there unquestionably is even even though fred you know did well later on in his life anyone would understand that somebody exposed to the kinds of traumatic and toxic behaviors that fred was is going to be scarred and is going to you know that's majorly consequential to his image to his development and the fact that we know people that have gone through similar things goes to show us that we do show them empathy we don't do show them sympathy and second of all with respect to his point about the you know the point that you know this is a terrible crime we certainly do not contest how terrible this crime was that's not what this had the jury heard this substantial and compelling information that fills in the blanks in their understanding of fred they would have been swayed they would have been swayed and they would have made a different decision