factually the issues that were with the subject of the evidentiary hearing and then i'll come back and discuss the during this conduct claim and answer any questions regarding any of the other issues very well so this case is an outlier in california death penalty in outside on their state he disputations this case still fit falls outside the general practice for litigating capital cases in california and so mr never had a full and fair hearing until he was in this fifteen year of in federal court then because of legal changes that took place after the evidentiary hearing concluded case was already on appeal and pending briefing in this court we're in a situation where th can't consider the information that was developed and prepared for the federal live and ensure hearing unless mr sapient can show that he's satisfied either twenty two fifty four d warner d to based solely on the state court record the facts in light of the evidence presented in state court hearing because of an inadequate state court fact finding process so we're talking about a crime that occurred thirty years ago in one thousand nine hundred four and in one thousand nine hundred seven not long after was convicted he was appointed counsel by the california supreme court and at that time they had dual appointment system so your attorney that was appointed on your direct appeal also did your state yes and also at that time there was no denies that requests and tells them except for some money for a walk with him tells them i'm not giving you any money until you go out and talk to the trial attorney about how we conduct the case kind of an odd proposition when you haven't done any investigation that they do that then they file a motion reconsideration of that funding motion and again the court says no money now you have to submit trial counsel's declaration about why you did whatever he did that we don't know yet because you haven't done your investigation so they do that then hundred five the file the supplemental funding request looking for things including mental health mitigation investigators and what not in the court finally grants them some money they give them twelve thousand three hundred twenty five dollars which one thousand eight hundred seventy five dollars less than two thousand dollars was for mitigation investigation and that was for paralegal together documents because of your limited time to try to figure out how the procedure here is case slightly over twelve thousand dollars of which under two thousand was for mitigation he then that and then and that that's critical for two reasons at that time the california supreme court was allowing twelve thousand been any money received because of the death of the attorney and it was deny at that time in the early one nine hundred ninety s the federal courts were routinely finding hay vs investigations when the petitioners got to federal court and they were finding it even if the petitioners already had state he used the commissions which most of them did this is an outlier case that came into federal court that the state yes how does that affect it is that action of the inadequate in this case that we need to there was no an unreasonable determination of the facts because there was no way to established that's because this case was such an outlier in the way the cases were being conducted in the early  t and act adequate fact finding process and the one is satisfied because when you consider the mitigating evidence presented at the state trial versus the more compelling  and you can't as your honor knows in your district court opinion in williams you have a toll booth analysis where you have two roads the one indeed two if you pass through the toll booth on either one you're in federal court and that's what we talk about your case say our case is much different it has been long had has been the standard in the federal courts that it a panel that a lawyer preparing for the penalty phase that for that word it is imperative i'm quoting carrier it is imperative that all relevant mitigating evidence be honor and what that means under the case law is number one the lawyer is to prepare a social history so he finds out about the background and family history of his own client so we can start to build a case for sympathy or to human eyes as client a number two when a lawyer would do competent lawyer where indicated he would have  germane they talk about doing a background investigation of your client i mean the cases like eddings and woodson that were in the supreme court before that they talk they talk about the importance of mitigating evidence to develop  in these cases so when when your client has some indications fog of new potential mental disease which in this case was the case because his family's avians family had a was a multi general the general aviation history of mental problems for example as mother died of a brain stem tumour his brother tried to commit suicide was referred for psychiatric treatment sapient himself had questions because you're raising here are a fair nothing is always it depends but it's a question of what a competent lawyer would have done at the time and he certainly would have done a social history was like a shot at lawyer would have done and whether he had a you know strategically possible reason for not doing it right well in reality he testified at the federal evidence for hearing and admitted he was tired of the city and so he didn't have  a reason for it he didn't do it because we can't look at what happened at the federal bench well i think you can because we have complied with you wanted you to promise face a case was it was present in the state hey these petition with no foolin no hearing in state court two and the one is satisfied as well so yes indeed our position strongly is that you can you can consider the federal evidence but you know in large part the evidence that was residing in federal court was present had these petitions the main difference is we finally got the money to hire the experts so we had experts who testified at the federal hearing it was no money to hire them for the state hearing but but the same claims the same four main claims were rais type of mitigation to what could have been presented by his father had abandoned the family when safety was age five i think inducted a thirteen year incestuous relationship with with his sister before he killed her and kill favor of the state and when the state lawyer would examine witnesses the district judge would correct the lawyer and tell him what he's doing doesn't hurt doesn't help this case i don't find it just record judge being particularly neutral when he seems to side one one one side but putting that aside i think when you look at his explanations he's not basing on evidence he's basing for example he said that he knows what a santa maria jury would do because they used to bicycle in that area well those are extra record facts that are no part of should be no part of this hearing he try to give explanations i think the supreme court has is a term post hoc rationalization suicide and perfectly fine but i'm a layman i don't have an i don't have any knowledge so if you want to say look the lawyer should have known because of  examined can in addition to those two factors about his family zeke being himself had hit head injuries he had blackouts he was suspected of maybe having syphilis which could have affected his brain function these are factors certainly that we give the lawyer some indication look have your client evaluated i mean there's there are things about the client that that  present a possibility that he has mental problems so have a valid way to go what is the i mean you're talking about defending a capital case so have them look at by a doctor and have him out on lies and to see whether there's a mental decided not to interview truck counsels prior public defender who left the case had the client evaluated by a doctor ratner that that's known what dr ratner did was known in the forensic community as a of the ineffective assistance of counsel claims were summarily denied by the california supreme court on hate this corpus and therefore the question under twenty to fifty four d under richter is whether there is any reasonable argument supporting the state courts denial of relief and here it was reasonable for the california california supreme court to deny the claim based on the evidence that it had before it as noted in our brief the analysis under section twenty two fifty four g is limited to the record that was five he did not present it to the state court in support of his hate is for tyshan which was filed over a year later in fact the first time it was offered to any court was in two thousand and one in federal court in opposition to a motion for s judgment therefore in state court petitioner chose not to provide reasonably available documentary evidence and because of that failure there was no way for the court to determine whether or not counsel had tactical decisions for  victim here and i guess yes there's a pretty compelling medical record shows that his hand was severely fractured that's what's your response to that well first of all once  again in state court there was no declaration from trial counsel showing that he was aware of or had received this report from the doctor and although there's a declaration from the doctor there is nothing from the doctor saying that he provided this to trial and this is something if you did have a prior hand injury and if it was impossible for him to stab and shoot begins allas this is certainly something that he would have told his trial counsel hey i couldn't have where did that  counsel aware that he in fact had a broken hand and therefore chalk on so wouldn't have been obligated to search for medical records pertaining to broken bones on behalf of absent titian or having informed him phoenix arizona however there were witnesses who testified immediately prior to the murder and immediately after the murder and none of them testified that petitioner was wark passed or that his right hand was he could have only he only used one hand to search for the chains because he had a cast on his right hand but even assuming that to be even assuming that's of the correct doctor did not testify that it was impossible for  he said it would have been difficult but not impossible assuming he assuming he had a cast on and assuming he just he did not have the cast on he said it would be very painful but never said that this is something that he wouldn't be able to do and especially in light of the fact that i'm not certain but i believe he is right handed but in any in any event the wounds were all close contact made made within a short distance and i believe that the records indicate that some of the wounds were made to  just the victim's right side which could tend to indicate that the person stabbed with a left hand or shot with a left hand  i don't believe there was there was there was about faith and there wasn't that faith when the detective knew that there's an m below from the defense counsel with the tape in it and favor of the detective who testified although the prosecutor had told him to go and listen to this tape and report back his findings the detective decided that he didn't want to be placed in that unethical position and therefore he threw it away which was necessarily does i think i think as i stated he just as he testified he just didn't want to be placed in a position where he knew he was doing something improper or unethical by listening to the tape and therefore as he testified he wanted to treat it for this conduct i mean you put the best varnish that you can on it with respect to the detective you know just throwing away an envelope but it's seems pretty clear from a review of the avodah i mean all the record here that they had a pretty good idea that there was something in that tape i mean in that envelope of value they would have been so conflicted and had so much discussion first of all your honor the trial court reasonably found that the tape was not listened to and second of all there was a transcript of the tape that had been preserved by the defense so the prosecution again nothing from the destruction of the tape and the defense lost nothing and therefore it was reasonable for the for the california supreme court to conclude that sure wasn't harm and that his rights to due process weren't violated but on the issue of whether whether the prosecution was sanctioned  punished the defense sought and received the instruction to the jury regarding the prosecutorial misconduct in this case and therefore prior to opening statements the trial court advised the jury that bandcamp had been removed from the cape case for misconduct and that the district attorney tom sneddon would be personally prosecuting the case the defense was then allowed to question members of the jury individually as to what if anything they may have heard about the trial what they interpreted the tr instruction or the term quote misconduct mean and whether they could still be fair and impartial in light of instruction and finally even though the misconduct did not relate to petitioners guilt or innocence and a finding was made that the tape  not been listened to the defense was allowed to introduce evidence of the tape the tape incident in mitigation at the penalty phase on the issue on the question of whether it was proper for the jury to sentence this issue to death in light of the fact that the prosecution had committed misconduct and to that end the defense was allowed to call detective harry high the person who had thrown the way the tape away to testify so in other words at the penalty phase the jury was made fully deprive to surrender issues trial fundamentally unfair and that is because it wasn't the tape wasn't listened to the defense team had a transcript of the tape and therefore as i stated earlier the prosecution gain nothing from it the defense lost nothing from it and the defense was given the opportunity at trial to demonstrate that the prosecution of the case reflected in awareness of the constants of the tape it should be noted  i believe it was either a top or first or cut were fourth which was the date the tape was discovered and therefore the defense had in its possession these notes and could surmise based on the notes or the strategy or any reinterviewing witnesses whether the prosecution reflected an awareness of the conscience of this that the tape and they were allowed to come back and make a showing at trial as to this they never did it in state in state court on direct  l they were entitled to do that as well they did not in federal court on federal they were they were entitled to do that as well they have not all they have relied on here is just pure speculation that the tape was listened to and that is not sufficient to overcome the factual finding and that there's no evidence the tape to show anything else i mean the problem we don't know that it wasn't listened to other than the trial court's finding which i understand that we probably have to accept at this point but if the tape had existed if it wasn't thrown away there would be no way to find out whether or not if it was there would have been a way to find demonstrate that the prosecution of the case demonstrated some sort of awareness of the contents of the tape and that is really the only way to show that the tape listen to what about the external detention facility that he had made threats against the guards if he were to be have to be given the death penalty that's it that's exactly i know there was a whole process which the judge at one point says well well i think it was in the sponsored defense counsel's question of whether or not something would come up where the jurors were talking about you know mr sapient in his conduct  what what happened in light of this juror's knowledge he says why yes i'll have to take up passive role and so clearly that might affect his ability to deliberate  what's your response that has the judge kept him on was that the california supreme court found read in context that zahra's comments simply indicated that he would be careful not to reveal the information to the other remarks indicated simply that he would be careful not to reveal that information to other jurors and taken as a whole since he had already agreed to disregard the information bases for it soley on the evidence and said that he could still be alternate at that point well i think just in light of the fact that the jury came to the trial court to notify him at the earliest opportunity and out there was a hearing held at which he said he could still be fair and  presumably if you can't talk you can't participate in deliberations very well and but not that different and just as well as for kay you know there's no misconduct i mean there's no issue of change so there's no hearing necessary because it's not going to have a hearing he said he said he would he he would not see obviously i'm not going to disclose that i have that information i can't refute if someone were to make that charge i would not be able to stand up and said i would take a passive role if that issue comes up mr slepian was entitled to the deliberation of twelve jurors deliberating his death not eleven not eleven and he said he would take a passive role in this concerned about it he said he wanted