good morning ladies and gentlemen we are here and judge roe thinner is here also as a member of our panel who is appearing by video so the lawyers will see her at the podium and we have her right in front of us so good morning also judge  case very unusual about this case is that it's not tethered exclusively to counsel's failure to collect say the central state records or interview other witnesses it is about what counsel actually did which was present and highly aggravating evidence on behalf of her client she portrayed her client through the two expert witnesses dr friedman and dr parker as an incurable psychopath someone who was born without a conscience according to them incapable of feeling normal human emotions and capable of feeling remorse so let me ask you this in general she's trying to raise a claim of mental incapacity in a way i'll say mental disease or so but trying to show the jury that he has those failings was one of the strategies available if she had tried to show he was autistic it would have been the same thing autistic people have flat after they don't relate to other people they don't have at least the ability to demonstrate normal emotion so yes the word psychopath may be may be a troubling word but she's she's trying to tell the jury that this wasn't somebody like you or me just who decided to go out and commit this ghastly crime well that may have been what she was trying to do but there are some problems there first of all the  research on on the effect that psychopathy has on jurors it is very sound and very strong they consider it aggravating because it suggests that this person is going to be a future danger i don't know if anything similar with respect  them and the person with that type of disorder may and i did have a lot more sympathetic qualities and options available to them than say someone who is incurable a psychopath who born evil is is your big complaint about the use of the word psychopath because at the post conviction stage social personality disorder and other milder terms are just different terms  i'm not sure if it's milder but other terms are used so it's really just about this word well the word itself does have a connotation in the community that anti social or autism does not have so that is there is something about the war but no it's not just about the war it's with the the doctor said about mr war and how far they went i mean they went to the point where they were suggesting he was enjoying the trial they said they suggested that he would be a danger in prison without any evidence to suggest that true and dr freeman even in correctly said that there was research is just suggesting that was true so it's not just the words it's everything that they said about the word everything that a jury was like to infer from the way that they're scribe this person they mitigation investigation was conducted for purposes of the post conviction hearing to school oh yes that were unknown to the defense at the time of the second trial she did not get well two things she did not get the central state records and that showed that a that he had been diagnosed with a compulsive disorder are that he had wanted treatment in the is quoted as saying he really wanted to get help so that created a very different picture of him she also did not enter apparently at least according to some of the testimony the witnesses interview that john scott or other  been used that there would have been evidence to show that bat is something that psychiatry untreatable as well well actually dr freeman specifically testified that antisocial personality disorder was different less a fear and treatable something that could be changed to couldn't somebody say that he wasn't suffering from the less severe whatever label you want to put on it you know just like a really bad case of anti social personality disorder or a more severe case to which a different word is attached i'm not sure why the decision of the indiana courts to accept these more severe characterizations is error too except well i mean that so the indiana court decides that the use of the word psychopath and in itself a reason to require another round of this they do have all of these questions and there's does seem to be a lot of evidence that he's a person with very serious problems that he does have various serious problems one very serious problem is that when he was eight years old he started compulsively exposing himself on that subject to him to ridicule cule and shame as a child and he has a very severe learning bill a disability he has a low i q but those are not in the same capacity category has so so he my biggest question for you frankly is even if i were to agree with you that there were deficiencies at the second trial and the lawyers performance so significant as to meet the first part of strickland the indiana courts all say that there was no prejudice from whatever deficiencies in investigation deficiencies and presentation there might have been and as you know harrington against richter tells us that we review determination like that with a great deal of respect for the way the state court evaluates the evidence how can we say they were wrong well first of all the indiana supreme court failed to consider that there was any harm and i read it to say we just don't get how there could have been any prejudice in light of the record the full record that was before the second jury in light of the crime and there is no such thing as a well they they said that the crime had very very high way and that there was nothing that could possibly outweigh and they don't they  was there ever a convincing explanation for why mr ward's criminal behavior suddenly acts you know escalated from exhibitionism and i guess burglary and some domestic violence to such a brutal and he miss rape and murder i understand that there was testimony about this yesterday just in his life and his you know his lack of coping mechanisms but was there additional context that was ever offered for why he was capable of this crime if in fact he wasn't born this way because the again the this sort or that he suffered from the one that everyone agrees he suffers from the compulsive exhibitionism something he couldn't control he desperately wanted to control you desperately wanted to fix that was not getting the help that he needed and over and over again he was getting in more and more trouble he was constantly in a situation where he he was going probation i think by that point in three different states and his life was falling apart he was mature are unable to take care of himself in any way i had been through much school he had parents who were had their own problems and this is just someone who i mean i don't know that we ever get an absolute clear nexus and i don't think that really your call that part of showing that there is and i'm looking at part to capital east three the indiana supreme court's opinion and post conviction where it sum up and weigh all the evidence as follows and then it goes through make ation and one paragraph in aggravation and the other paragraphs i don't see a word they're saying there's nothing that could have been said they would look at what's on both sides and they finally say after weighing the totality of the mitigating evidence against the evidence of aggravation and cetera they don't see any reasonable probability that the post conviction as it's been changed anything how how do we say that's so far out of bounds that the standard set forth in twenty to fifty four are met because they didn't consider the begin with it's if they are out of thought so they may have thought look she tried earlier it was the first trial lawyers tried and this is mentioned actually in the indiana courts opinions to say that he's actually not the monster he seems to be was nice to his grandfather he had other redeeming features he gets the new trial actually because it's n u not because of anything else but he gets a new trial it's handled by the same lawyers who do the appeal of the first trial so presumably they know that record and they think well that didn't work you know let's try mental disease you know so i caught that he's a psychopath now you can sit here maybe i can sit here and think boy that sure didn't work you know people aren't terribly taken to psychopaths but they don't have many cards to play the first trial was reversed because the the community and the  that first trial based on that jury would have made any sense it's also not what council did and there were at the first trial was not a complete either a so i don't think when you look at the first trial there were two lay witnesses mom and dad dad was dead by the time of the second trial three mental health experts that gave inconsistent testimony with one another something pointed out by the prosecution you know there were certainly factors in there that that she wanted that this young court said she wanted to follow through on and she she intended to do that but she didn't so i don't think we can look at the first trial as a gauge for looking at the reliability of or or the prejudiced or the second trial to interrupt and i know there is a bit of a delay so it makes it difficult for you but you know this was such a horrific crime committed under more you know more nuanced and humanizing than the theory that was presented at the second trial but where could it have ever offered any realistic likelihood of  of a different result how and how how could there have been a different result there are cases where people have committed a crimes christopher stevens case murdered a ten year old little boy tried to smother him tried to two while he was saying i love you i love you after having molested him thirty five times there are many capital cases have very very severe facts from phyllis case had very very severe bouts he was also found guilty of torture and our earth as an aggravating factor and future dangerousness worked out as aggravating factors in that case that doesn't rule out the possibility that a jury an income bird by the having to prosecutors is basically what happened here couldn't find reason for mercy one juror says if this had been my kid i would and earth to help if this had been my child i would have made sure that he got the help that he needed i would not have let him suffer for this mom he needed a pill he needed antidepressants his disorder is treated with antidepressants and was being successfully treated in prison with antidepressants dr cunningham at the first trial pointed out this man had been incarcerated had never had incidents of violence in prison and that that was the best predictor there was abundant evidence that they could show that this person who was repeatedly described just like a child goober was his nickname was someone that was worthy of sympathy and when you have a case where the first trial is biased jury the second trial is one where counsel is literally acting as a prosecutor to assume that this is standard mitigation mitigation the does work in other cases mitigation that jurors can relate to his attention deficit hyperactivity disorder learning difficulty you see exhibition it comes out maybe not in quite is nicely packaged a ways to the second jury does have before it those kinds of  too it's just not persuaded to recommend life in prison without parole it's absolutely a lot of it was presented to the jury but they were told that he was born without a conscience why would it matter who cared what his parents were they literally told them this doesn't matter this exhibitionism had nothing to do with it he is a monster he was born without a conscience he was not capable of human emotions anything that was inconsistent with that they nor did they explain well he said he experience well i think that the way that they testified shows with something that's done a lot of times when i mean psychopathy comes up in criminal trials almost always by the prosecution and defense counsel are used to looking at the some one of the things that is very subjective they tend to ignore any evidence that is inconsistent is somehow relegated to well he must be lying or he's being manipulative you know that's what happened here that's the way they are portraying him and if you look at that evidence and you see the picture of the monster the picture adopted by the prosecutor that is portrayed here how how would any how could you possibly give effect to any other mitigating evidence that you could have discerned from you know the other things that came out in bits and pieces throughout here certainly the evidence trying to show you would be a future danger was undermined by the experts very directly and very clearly also the evidence of of his his family i mean you know when when his mother said something like you know yeah he loved john scott he had his long relationship with her and so forth and his the expert said well that couldn't be really love because he's a psychopath so i that her testimony is that she has been his friend for a very long time which is true and that that she is someone that he had a lot of very good qualities they also saw he was very mature and yet he had some back qualities  comes out and certainly as a supreme court has said sometimes we have little facts that come out that you know are always positive that doesn't necessarily undermine the case and if that is all that happened here that would be f don't like i would like to go back if we could something that i really you know have been thinking about quite a bit and that is that i gather there wasn't any real disagreement among the five defense experts that have examined this toward that he does suffer from anti social personality disorder am i correct  well actually the first time he was diagnosed with either anti social personality disorder or psychopathy was at the second trial the first there were three experts at the first trial they all evaluated him none of them diagnosed him with that and any expert that he had seen prior to this in central state or these other treatment connections with treatment programs he didn't actually participate in most of them but no one had ever diagnosed him with that before and that was conceded by both dr parker and free about the differences and i want to make it very clear i'm not suggesting that antisocial personality disorder in and of itself is a mitigating factor i'm not saying the bad things she did here was put up psychopathy and she should have just put up anti social personality disorder there was a  so but so and what they said about anti social personality disorder at the second trial they didn't focus on it in fact at one point the state actually had a complaint during cross examination why don't we talk more about anti social personality disorder and so i think that they explained it in a way that this is a pattern of anti social behavior we have to look at the causes about behavior he had eighty h t that causes anti social behavior when you're a child he had a learning disability he had this exhibitionism look at what is in the family dynamics look at what is causing the antisocial behavior and not just relegate him to a label and they certainly said very clearly they didn't think he was born well but i'm going to go back to see the overall performance of the lawyer because we don't pick out one thing or another thing they do put a can on the stand who's quite clear that in his view and he's got a lot of experience a very good witness in his view ward can be managed in a high security prison setting so whatever the psychiatry is or psychologists may have thought you have a professional correctional person saying sure you know we can manage guys like ward and doesn't seem to vary when he says that well he doesn't seem to vary but the research first of all shows that the jury was likely to give more weight to the like i'll say things like i was can only do what they can do but they put they put evidence in the record that said as he's manageable so the jury has before it again i it's not like you or me coming it's a highly experienced professional in the corrections business in indiana who knows presumably what facilities are there and what measures they can take says it's going to be ok if you don't give this guy the death penalty he's going to be controlled and you know i don't know what else you can as the lawyers should do even if the jury might think that this is a disgusting crime and that they're going to punish him i think we could have asked her not to put up two psychiatrists psychologists psychologists that said one of whom said in accurately that research suggested that with mr aiken just told you is not true for a very small subset of the vigils and one of them is mr ward which is basically that he is going to be a change or he is likely to be a danger and present that was an accurate information and  that was friedman parker said that he was likely to escape try to escape and he would not be dangerous unless it was with a woman or someone he could overpower i believe her also said yes so something like well use ok as long as you don't take see how dr mr aiken's objective point of view of what we can control people in prison is going to trump their point of view which they are claiming is coming from their own but that sounds a lot like did novo review to me i just have to say  oh here's here's where it is on page fourteen if your brief parker says ward would only be a threat in prison to someone smaller or weaker than himself or perhaps if you could catch someone in a moment when he had the upper hand which sounds like pretty much always when he's out of the cell now if he's in his cell twenty four hours a day seven days a week then i guess that's not a problem i didn't understand the question about to know more of you that the kinds of things you're saying about him re weighing the evidence are disturbing to me only in the sense that that's not our role at this point we need to look at what somebody else did and see whether what they did portable by the evidence i think the indiana supreme court's fashion findings and their decision to look at this by viewing psychopathy as a mitigating factor without taking too into account the kind of aggravated aggravation aggravating effect that most certainly had in so many different ways on this case is unreasonable and at that point to know her review is all you can do  d on the facts of this case or really any case for that matter why was it a reasonable strategy to re will mr ward and psychopath doesn't that invite the very response from this that the state made in closing argument which is to say that the only realistic thing you can do with a psychopath is to incapacitate him psychopath has a meaning that strike us any individual who's ever heard the word with terror here what defense council was dealing with was two traits of psychopathy that were present in this case that defense house couldn't do anything about that they were present first that ward was not remorseful at all about his crime and showed no emotion about his crime and the second was given the facts of this crime and his criminal history that he would be a future dangerousness future danger to society and so counsel did  what one of the two things you can do when you have damaging evidence that you have to deal with is either confront it straight on or ignore it and wait for the other side to bring it up and then try to deal with that there those are both reasonable strategies and what defense counsel that here was confront it straight on explain what psychopathy was and then offer evidence as to why the jury should still give him life that parole so the remorselessness explaining that it's not his fault he was born this way and the way he grew up made him to be someone who doesn't have emotion i'd expect but there was evidence there was actual evidence that he might still be capable of some type of regret or remorse that he had been in the past and doesn't a defense team have to develop and  emphasized what ever evidence it has along those lines isn't that wouldn't you agree that that is the first and most fundamental obligation of his attorneys rather than to come out and suggest that he's incapable of such feelings as i say when there was evidence that the man was desperate at times in his life to have help that he was capable of feelings of remorse and regret first of all i think the evidence of that is is subject to debate but certainly counsel had to stop it how to use that evidence because it actually cuts both ways because if the  defense counsel emphasizes that ward is capable of remorse and capable of that and then has to acknowledge he has no remorse for this horrific crime that is likely going to be more damaging in front of the jury than presenting evidence that perhaps he could be remorseful at some point because there's there's really no evidence that he was remorseful about this crime the closest you get is his statement i think to that he had regret that doctor dr fit for r o testified that even even when ward expressed these kind of feelings that he realizes that it's not the type of remorse we other people feel it's something that he needs to have or should have and so even even those those kind of indicators of remorse i don't fit with what the jurors were saying which every day in court he's emotionless even when the graphic pictures are being shown and what he did is being described he sits there motionless and and that's what dr i mean  or one of the attorneys actually spoke with six of the jurors from the first trial and asked them what what what did you think of the evidence what were your impressions and one of the things that were that the jurors were  communicated to him were that we really were concerned because he sat there during trial and didn't offer any kind of emotion no matter what was going on the trial and that and so steven richer and knew that they needed to explain that to the jury in some way they couldn't just ignore it because that was something that the jurors were going to be concerned about and in that regard i just want to clear out there there is a mistaken citation in our brief on pa twenty two in which we talk about trying to turn a young court looking at the first mitigation and decided to take a different track that's actually at pages fifty seven through fifty nine of the post conviction that this russian whose life was absolutely falling apart and who was assigned to prepare this social history only spoke to twelve witnesses she never got to the forty or forty five other witnesses that young court had assigned to her  to we deal with that as far as ineffectiveness go yes i think what's telling about that is that in post conviction none of those witnesses were presented as witnesses who should have been presented when you look at the motion for continuance in which young court says that we have forty five witnesses more we need to talk to she lists some of what those type of witnesses were and she says she wanted to talk to all the police officers and all the victims and all of ward's public indecency cases that he had throughout his life so just ask you to review for me how that part of his history ever got linked up to this crime the fact that he had these thirty two instances or whatever the number was of the public indecency matters is their expert that says that that proclivity on his part was somehow related to his decision to knock on the door and tell the live about the lost dog and so on that's a i'm trying to figure out what you have relevant and you know what it means really that's that's a little bit difficult because there are different ways that different experts approach that and so dr davis at the first trial testified that he actually exposed himself to the victim and that that maybe he went there to expose himself and then it escalated from that but but  given ward's account of the crime to dr davis which is very damaging for the council didn't decide to use that so so then when we see it it really appears next is  counsel in preparing for the second trial says we've never had any explanation as to how exhibitionism leads to this in fact young court said exhibitionism from all i know and what i've been told by experts isn't violent it's a non violent phenomenon and so we need something to explain how this turned into violence now dr ferraro at the post conviction you talked about it as being one of the stressors that led to this just picture of war that he was just overwrought and because of all this are going on in his life mostly because of the criminal aspect that he kept going to prison for exposing himself and and dr parker if you that page that you cited that is cited in their brief his answer to the answer could he be a danger to other prisoners probably not his violence as i understand it tends to involve people that he sir larger more dangerous and the other person he's not and he's not of those small but mighty people that are difficult to fight with his prime or likely to be a victim in prison than he is to be an offender in a fight and then would he be a danger to  female prison guard you have to remember that there's a power differential and he's acutely aware that the female prison guard has the power vange over him so dr parker was testifying would be a danger and then dr friedman at page  seventy says he's a low risk that he would commit violence in prison the cross examination the prosecutor brings him some reports about risk of psychopaths and prison and dr friedman actually down place those says i don't think the studies really reflect their kind of broad range studies that don't aren't really helpful and if you look at you need to look at the individual if you look at the individual war and he says and i seventy five beach and nine hundred seventy five he given his background would not be a danger person so both dr park and dr friedman is testimony about not being in danger of prison dovetailed with james taken steps to moni that he wouldn't be a danger in prison and those were really the two one of the two things that counsel was trying to convey to the jury was we know that research shows that you're concerned about remorse and you're concerned about future dangerousness he's not going to be a future danger some prison a prison if you give  the parole and we can explain the remorse that it's not his fault he was born that way and had an environment that encouraged it and so you can't blame him for the remorse either you know that seems to me if  what you had really been setting out to do is present a mental defect kind of case and that's really what you're saying because of perhaps the time stress on this lawyer who seems to have been very over committed as far as i can tell and the failures of the investigator that defense never really gels me just kind of throw it in as it is because the trial court's stuck with the trial date now that still leaves my other question which is how does one deal with the indiana supreme court's finding of no prejudice but in terms of the performance it seems like a fairly clumsy presentation of a mental defect mark my review of the closing argument and i ask you to look at defense counsel's closing argument she did the best she could with what evidence she had she made the most compelling case she could to the jury now it did but with what evidence she had no had she had more time to put together a more coherent story of mental defect which is part of it of which we see it the post conviction well that that gets to choose and my other point that would be that that there really isn't any difference with the post conviction testimony as the trial testimony so given more time they have experts who testify to the same arguing if they would have been presenting evidence to the jury that would have that would have the state would have brought out the psychopathic features of war and more explored those but they didn't need job posting fiction because the experts were saying  had been wards former counsel on that whole series of indecency charges gave extremely important testimony about the  shame that ward had felt regarding his criminal behavior here and related to that you had the medical records from the state hospital evaluation of ward that were apparently also missed in the original investigation that reveal how genuinely and how  there's no doubt that it would have been relevant and available for trial counsel to present the question is whether it was an unreasonable decision not to present it and judge the coby while he did testify to remorse it was in the context of him representing him while ward was on bond for a public indecency then goes out and commits three more public indecency is and has to go to back to jail and so he said at that point he was you know pretty and regret not because you know he he didn't has to buy that he was remorseful because it's sitting in jail that's the spin that the state puts on it and one expert and when you look at the times that ward says that he wants help all of those are followed up by him not following through with treatment treatment being discontinued because he's not involved with it dr edwards testimony during the second trial so how much of a difference that would have made when the main argument that counts was trying to put forward in trying to give the reader jury a reason to vote for life was that the remorseless the fact that he wasn't remorseful about this particular murder is not his fault and that he could be ho safely and that was a reasonable strategy as the indiana supreme court found and were has not shown that that determination by the supreme court is itself  unreasonable just want to point out one quick thing about dawn scott just a reminder about that relationship that relationship was a sexual relationship when ward was sixteen and dawn scott was twelve so to talk it as being they were in love and showed his emotion you have to remember what type of relationship it was from the beginning which was which was a crime in and of itself  so not sure how that shows that he shows emotions or anything else other than he seemed to prey on don scott as well i want to just go back for one moment if i'm if i my because  what what has bothered me is the indiana supreme court's reasoning which i think boils down to so long as you talk to some reasonable number of witnesses in an investigation twelve year it doesn't matter who you neglect to talk to and that notion has been debunked and why a number of cases and it seems to me that so long as you can show that defense counsel knew case there hurt in it and in ineffectiveness and of course you know we all know now that young court knew  there has to be at least an indication of what more could have been done and just just to point out it wasn't just not saying or are you that they haven't shown what witnesses i mean this young board is but begged begged for continuances over and over and over said she wasn't ready she wasn't ready had six other death penalty investigation and legwork at the same time she was using her husband who was a retired sheriff's deputy as an investigator to go out and find things she did a lot of things of talking to people just to koby was known to defense counsel was listed on their witness list and they decided not to have him testify so what further investigation that they're there could always be more investigation you could always talk to more people but surely it's not the standard that defense counsel has to talk to anybody who has ever had contact with the defendant before they're doing it before they've done a reasonable investigation and here i was to say i think one of the questions is and i think you alluded to it a little while ago is is how much of a sense do we have of who didn't get pursued and what they might have said you've indicated that some of them were people associated with the  them because i mean that's how you have to do it you have to say you know i at the post conviction you know i wasn't allowed to look at the following fifteen witnesses and had i been able to they would have shown that he can show remorse or they would have shown that  really is a disease or they could have shown whatever they might have shown and so i guess i'm interested in how good the record is on the missing pieces but there really isn't any demonstration post conviction of a line of inquiry or witnesses that went under skiver the one witness that i can find that was present a post conviction that that wasn't presented at the second trial was don scott's mother who was going to testify to the same thing that don scott testified to which was i thought that they were a good cause and i thought ward was a nice nice boy which is it an extra kind of piece of evidence it's just human level what don scott testified to so there isn't there isn't that unlike any of the supreme court cases that are found the investigation to be inadequate where whole swaths of a person's life ha gone on and looked at that's not what we have here at all if there are no further questions we are situ affirm the district  donnelly i think there were some viable alternatives to talking about mr ward's apparent lack of emotion for example parental modeling his father was universally described as someone who didn't show emotions children learn from their parents and that we didn't have to go to psychopathy to do that and say he was incapable of experience that that feeling the same with future danger at the first trial dr cunningham reviewed every single prior conviction he had a lot because he had been in jail for all these exhibition charges and so forth and said based on past performance which he said based on his reach earth and he has done extensive research on predicting future dangerousness that there was no likelier it was very unlikely that he would be a danger in prison that he had not had instances of violence based on this prior incarceration and so there were alternatives to psychopathy i would also point out that she didn't prove the one thing that they they say well just that was so important here which was that he was born this way because there isn't any agreement among experts that there is such a thing as being born with this condition or any particular brain abnormality that it was going to ask you my recollection is nobody did brain scans or otherwise examined the physical makeup to see if there were odd lesions or they absolutely did ups nothing and they had to concede that so if that was what she was trying to get out of this she utterly failed to do it and i he could and she could just to be clear she did not have judged to kobe she did not have the central state records there were a few other witnesses listed in our brief and she was asked on each one if that's the kind of information it would provide but as i said at the beginning the thrust of the claim is not just what she didn't do but it's what she did in response to having not completed her it is there's no data one way or another whether whether that necessarily proves that people who had this kind of problem exhibitionism clearly had different levels of very mr ford's father had the problems grandfather had the problem as great as father's response to this trial the conviction was to go out and commit another crime so it's so but clearly it doesn't always one hundred percent of the time lead to more violence but there is evidence that it does some time to do that for precisely the reasons that the experts  and at the first trial talked about some of the experts it is something he cannot control by himself he was twenty five years old when the crime yes did you do any sort of research to see if  was the hearing on dr freeze and spent the five thousand dollars bill she said she called around the country not just in indiana but around the country and could not find a single lawyer who would would would suggest how she could possibly do this and i am so it is definitely hearing about how that horrible condition something he was born with apparently i was eight years old is the first time he does that he's twenty eight by the time of the crime occurs and hearing about how much he tried over and over again was how much he wanted help and how no one was able to help him and this is not someone who's capable he's living it with his parents he can't get a job he's slow he has a low i q he has disability yes no education desperately wants help very much wants to do that and can cannot get it that is the kind of pressure and it does in sometimes in other cases have led people to to x explode like