overview point out which this court probably as noticed in our presentation is in writing that this case involves a rather lethal mixture it's not unique i guess this court has seen it all but in my experience is unique and that is an attorney who's involved in pervasive fraud in the trial court the failure to develop and present mental defenses even when the trial judge was out there's a lack of any of us of mr b morse having any mental problems and the prosecution even to make any admissions if you will regarding his conduct or its or even to try to it splaying history is kind of up and i have pointed out a we have pointed out in our briefing that he made for example we paid his investigator for five thousand eight hundred hours of work one hundred forty five thousand dollars and yet the investigator did very little second counsel was the bronco has pointed out in her desperation that it was before the state and this court that charles small investigators get virtually nothing are very figure at the lack of that in any case of this magnitude it seems almost inescapable but it would happen have some prejudicial effect on the defen and on the right to a fair trial of the defendant in this case we do know that there was a wealth of evidence from one report a psychological report in this bronco most of which is mr b more suffer from says chowder now can i make a direct connection can we make a direct connection between that not being presented to the jury actually hidden she said that they actually put that  b more being a basketball star went to all of these different colleges he washed out of each one but that he had all these opportunities in the process you point out that no use out partying use drinking he wasn't taking advantage of it other opportunities provided to him through the basketball scholarships what the jury and the trial judge never knew was that mr bean mord did have these severe learning disabilities and he did have organic brain warm but it was an admission that he wasn't violent but he had mental illness going back to childhood and judge bill when he sentenced mr bean worm stated that i would be intellectually would not be entirely intellectually honest to say that i haven't had in mind the knowledge that the jury in the costly case their judgment was that mr costly the a poor quid penalty was why he said was some there monster mo physiological damage and death as there's no such evidence in the case of mr bremer now this report of dr fine and was sitting back at the office in the back of a foul grew a defense counsel even at sentencing aside from the jury being deprived of any of this information of mental illness and sentencing when judge points this out that the contrast between the two vina pointed out that she had never seen somebody as ill prepared as mr mccartney in this case and she said i was there for window dressing they paid me twenty seven thousand dollars i did nothing because mckechnie would listen to me he did not know the case investigation when she figured out there was a crowd going on in this case she confronted mr mckay and she'd only been at all school two years this is her first murder case she confronted him about this is that look charles small the investigator who ran up fifty eight hundred hours of investigation he's doing virtually nothing and she says in the case admitted to her the truth of what she was saying at the penalty phase let's say what dr fineman said with that have have interfered in any way or contradicted in any way other things or other points that they were trying that the defense was trying to prove in the penalty phase your honor the evidence presented that is the focus of mr broncos presentation call is a good guy otherness that he was a great guy he was a minister a baptist minister is going to bible college and everybody loved him i frankly do not see how that would be a conflict and i'm just one person but i don't see a conflict between a client being a great guy or a great lady and having this great will the just background and also pointing out that this person has been hampered by mental illness throughout his or her life i don't see the conflict now you want to get into him going into a rage lou engle way out of his mind and killing that is the deceased maybe well  was steered clear that it makes i i don't think it should have been so i thought that was the heart of the case it should have been presented but let's give the defense a benefit of the doubt still where is the conflict resenting severe mental illness or bipolar disorder i mean lawyers have bipolar disorder judges doctors i mean it's it's something that that afflicts any of the city time and what someone in presenting that i don't understand and be this written of this well this was a strategic decision by council because they did not do the investigation they did not take the next step for example  copy in the back of the drawer so i assume maybe there were two but she said they did talk about i mean it wasn't some mystery that she was off somewhere else isolated in a vacuum from the keg she was talking to and apparently on a very regular strategic basis for decision there has to be a reasonable investigation and that did not occur in this case for example the m making admissions to them each one says and decorations before this court that had the defense asked me in cross examination i would have spoken to the fact that eve's crazy cop one said no one s ineffectiveness for presenting and corroborated and investigated alibi defense in the second part which the district court found with and exhaust it deals with it and make a case actual involvement in concocting the false alibi and advising instructing is quite a lie sure first i'll talk about why the california supreme court's denial of this argument was contrary to and reasonable application  that he actually committed that robbery that's correct but and so what bothers me about in terms of your argument is that at least initially i will maybe help defense presented in a death penalty case was the fact that there were no corroborating corroborating witnesses and this is a finding by the california supreme court we do have some factual findings that they issued in that the client got on the stand in line to the judge in the jury is we allege and certainly that was a problem and i think it's understandable that it would upset the judge and the jury especially since the judge had just sat through several weeks of evidence of this case in the constant trial if i may briefly just talk about that an ex she was afraid or she was hesitant to say anything about her knowledge or acquiescence in the perjured testimony of the false alibi because she was a member of the california bar at that time  made up the evidence in her declaration of april twenty four teams she states that having done no investigation of the alibi when it came time to present evidence in support the mckechnie found himself left with only one witness the defendant instead of competently preparing a legitimate and honest defense in the two years that preceded the trial mckechnie spent just two hours at the county jail preparing his client to lie without investigating the potential alibi or any other defense mckechnie told you more that his only hope for freedom was to testify that he had been committing the warehouse robbery at the time of the murder which thousands have ma'am except for the word why had she made  attorney mr mckechnie chose to present a false alibi as this only defense because it was a rather it didn't require that much time to prepare and it didn't require the use of thank you man or man please the court holly will come on behalf and respond with respect to the mental defense discussion i did want to point out in response to judge her sons question with respect to mr fineman whether or not he had recommended further examination or investigation with respect to b more in his declaration that was before the state court and the district court he does indicate that he may have  if they wanted to tactically present such information they would have been so for example he said it might have been bipolar and that might have been and intermittent explosive disorder which she said had a or had a basis and it might have been sociopathy so when you should want to know what it was before you decided under the fence well opening the door to be evidence of an antisocial personality disorder i would not have pursued it for because under no a tactical decision that it would not be in the best interest of your client what's the reason you say because you wouldn't want to open the door you would not want to open the door to the  mental health condition when you have already made a tactical decision how can you make the tackle this isn't about what you can do suppose a further investigation showed that he was saying he wouldn't want to know that because he made it this is speaking from this case with what was known about this case and what we know about this case the defense was one information from the assessment by dr fine men who is a qualified psychologist to give the defense and nothing furnishing from which to know that further investigation opening the door without thinking about there being no reason to find out whether he had organic brain disorders or an explosive whatever it is that there is no reason to find that out because our alibi defense is so strong that it overrides any possibility of showing the levels as the facts of the crime combined with the pursuit of the alibi combined with what was known about mr beam or most importantly the anti social personality which say he had it he said he it was and defense attorneys strategic thinking and subsequently assessing the defense of a particular defendant is what the defendant said and what the attorney for penalty phase if it occurs yes your honor with respect to this particular instance the lingering doubt that would carry over from the guilt phase would be undermined by learning that the particular defendant has the earmarks of an anti social personality disorder but more importantly than the lingering doubt would be the effect upon what was a very powerful medication defense from over forty witnesses attesting to all of mr b more good deeds his religious beliefs  given the circumstances of the crime and mr b more that it would be devastating to have the prosecution meet the mental defense of with evidence that mr beam or is a sociopath which would explain all of his good conduct coming into the torture murder of a liquor store clerk for money it would explain every facet of mr bean moore's life and his crimes and it would negate so convincingly all of the mitigation evidence instead of an individual who had overcome his childhood and who had served admirably as a police officer as a member of our military who had parents would who had been a flogger who had descended into drug abuse and then even after this horrific crime had redeemed himself and become a good prisoner all of which would be he was the tank captain there was very extensive compelling evidence of his good conduct in  well in advance of the beginning of the trial mr mckechnie according to this bronco indicated that they would be proceeding with an alibi defense she subsequently indicated about why he couldn't have committed the aztek bribery there were inconsistencies with respect to discredit one thing i noticed in your previous is that you spent a great deal of time with her in the alibi testimony suggesting that this should be more insisted upon is there any evidence at all for this to be more sister yes you can support the inference by virtue of the fact that he continued to insist upon his innocence in the post conviction probation interviews there's absolute there is no here and he there's no decoration from anybody that he he was the one who wants to put this one correct there's no declaration from him and that that particular so there is no i mean is that the inferences from something he said later on which hasn't because he had already testified to this but that doesn't demonstrate that that he was the one who insisted on putting it out as so i mean at all i'm saying this seems to me that's just off the table the notion of that that effect because we have no evidence that he didn't just it is not off the table given that this is a post conviction proceeding all presumptions favor the judgment all presumptions favor the regularity and it's incumbent upon mr bean more to show as he alleges that it's mr mckechnie who put him on the stand it was mr decision whether to testify that's his right and we have no indication of any first hand knowledge whatsoever that that was not the case and that is conspicuously absent given that  doesn't have to be an absolute impossibility that the same individual could be in two places within a time frame but you can reasonably argue and infer that an individual six point six this is not i think there's less than one percent of the country that's over sixty two this is a very tall individual who has been identified who has proceeded to create a lamb who has been bound over with the descriptions of the vehicle and then you have a crime that occurs approximately forty five to an hour later sixteen minutes away but he would have had to change clothes he would have had to have the motivation for more money but nothing in anything that was said in oth not physically impossible was known but that doesn't mean it wasn't a valid tactical consideration to go forward and suggest that an individual of this unique height my is the heigh have to do with anything i really computes a six foot six armed robber is unique and he's wearing different clothing and he has to first i'm of the witnesses didn't even say it was six foot six they said it was shorter than other people who are sixty in addition in addition he had enough money to go buy drugs that's what he testified to and quite frankly when we look at struck one we cannot second guess we cannot know what mr b more insisted upon his mr mckechnie if you have a client and we know this from this court's decision in being if you have a client who insists upon saying i did not commit this crime because i was over robbing another place and that's what i want to testify to but i understand your point and again your honor i don't want to i don't want to be hung up on the semantic of alibi i would rather emphasize that with respect to the representation of mr b more that mr conviction collateral relief it's incumbent upon the petitioner to state a crime a fish a case for relief it's well established under california law and not inconsistent with what would be required in a federal  that there was a two hour discussion proceeding mr b more taking the stand which she was not present for which she was not privy to the content nor can she know or have firsthand knowledge to indicate that that is the sum total of the communication between mr macapp me and mr b more as mr wankel has consistently stated she was appointed as second counsel she had responsibility for clearing the penalty phase she was not privy to the guilt yes i don't know that they're complete and we don't they don't have the specificity to indicate what he was doing with particular regard to the alibi we do know that all of the police reports from the witness all of the preliminary hearing testimony from the warehouse employees we know that all of that information was available to the defense but again if there is a gap in the record that is not the responsibility of the respondent to address the gas in the record it's incumbent upon mr beam or scoundrel to explain why readily available documentary evidence in support of their claim was not forthcoming and mr b more has firsthand knowledge of what he said to mr mckechnie and vice versa and we do not have one ounce of affidavit from mr b more on that we have a i've investigated to know whether it is true you know he would want to know what was consistent and consistent and he would want to discuss that away and the second crime was forty five minutes later so not really an alibi and talk about it and be more insistent on in that case w if there were other avenues and his finite resources permitted him to and if he just believed what his client was telling him i believe there would probably and i will agree there was extraordinary generous expenditures by the court but we have no nexus to demonstrate that things that should have been done were not yes but all i'm saying is that we certainly th pretty much what i was saying to your opposing counsel before i don't know that it has any independent significance but when you say well they have finite resources and that's why perhaps they can do this it seems to me in the day that i respectfully had hands and it was considered by the district court in the district court appropriately noted that you cannot draw a nexus between a disadvantage in terms of the defense that was proffered they also can say time is drawing near are there any additional questions you're topics that the court would like for me to address your questions thank you dollars the defense will see that's not attorney fees that's and celery services in this case the regarding the alibi and this is in the record before this court it to unraveling because it wasn't true and it was and the prosecutor use the expression he said it was an illogical line referring to the alibi what do you know they asked for the question of part take responsibility and if we have indications as you pointed out a possibility of bipolar neurological damage or as dr rosenthal said organic organisms if you have indications of that as an attorney who is worth his or her salt should investigate should explore that and again and we touched on this earlier as i was asked about this in my earlier remarks and it was touched on some i i do not see the inconsistency presenting avenues at the county phase that for example asserts reinhardt mentioned one being bipolar i don't see the conflict between that and whether or not be more supposedly was i don't see the conflict they put on forty witnesses but a wonderful person he was even though the jury was convinced that he had brutally i was lying mr mark in that robbery it seems like they could've also maybe it was an evidence that he doesn't disability that the reason he failed as a police officer the reason he failed and all of the schools where he went to play basketball was because he just mentally did not have the faculties to function reasonable