think about four o'clock i got we we all we were all aware of that now but we sort of got it in i think judge to us in court and got it when he got out of the court but anyway if you're there's an indication you're trying to augment the issue before the district court so you can include this is part of your argument why don't we are back to ten minutes now that i know that and well just to clear that is part of your argument and we're going to have well just have to consider it as part of what we  the prosecutor which the prosecutor then used against mr elder roughly a trial we requested in evidence your hearing on that issue before the district court the district court found that the  there that he developed because you've got these these reports that were turned over that doesn't seem to be disputed the issue is whether the prosecutor said that they knew about him it didn't matter because the prosecutor said they doesn't say in there that he would have discovered the information anyway that was a leap made by the district court the district court said that trial counsel prosecuting trial counsel would surely have met with the girls would naturally then have spoken to the other girl when their names in a place are part of the one girl candace her name was in the police report her sister charmaine i believe her her name is in the police report the prosecutor had provided a witness trial there is no basis for the finding that the prosecutor would have uncovered that evidence that he used anyway because he hadn't he had never amended his witness list to add sharmeen the other sister or to add jasmine mr author rafi's daughter he called both charmaine and jasmine so essentially because he was a crummy prosecutor and didn't really read the place required very carefully that then it was defense counsel and included further statements extremely inflammatory and prejudicial by charmaine and the prosecutor was able to impeach mr rubb own daughter using the defense investigator report  not supported as well as the allegations made by can dismiss charmain the two sisters that were in charge the prosecutor never charged them he never charged them as victims he could have he didn't he never listed charmaine is on his w know there's nothing that can support it just reports find out what was your remedy be in the sense that ok so that you get a new trial these people are now i mean they'll be at the next trial and there's no way you can stop that right well that's an interesting question your honor because that did come up this morning and i apologize not being a space station or i don't know the state rules as well as i'm sure your honor does however mr all garroting should be permitted the chance to have another trial where it gets litigated before the trial judge whether the testimony of these two girls comes in whether there is some error or whether there is some reason why the trial should be as it would have been without the error of the original defense counsel unfortunately the statutory scheme scheme in california has gotten pretty bad for people and i think eleven zero eight you know in terms of that muster that comes in and it seems to be being held up on  show error in that you still have to show it based on you know just because someone has a mental illness doesn't mean that they can't be effective counsel that's correct but under strict law and the courts the district court and the there was no decision on this but have there been one just a court was required to assume that trial counsel defense counsel acted reasonably and competently so the extent of his mental illness affected his thinking and that affects the wane the balancing that goes into determining whether there was ineffective assistance of counsel and as a course prior question there's also no way to know whether the girls on the retrial would say the same thing that they said it's been many many years and there were certainly issues in signed a declaration saying that he learned about sherman in hand as through independent investigation he knew about them and personally interviewed them before the defense investigator interviewed them corroborated by the record in front of this court what we have in front of this court is the prosecutor's witness list which is dated may twentieth one thousand nine hundred sixty the witness list include see by inference that it is the defense investigator responding to the prosecutor by going out to interview these girls it's not the prosecutor who got reports from the defense investigator and then two sisters but we certainly have the declaration of the prosecutor that he knew about these sisters and that he went out and interviewed them before the defense investigator ever interviewed them so it's this case where every man  prosecutor should be talking to these two girls except about the young charge grimes so i don't think your honor that there's any reasonable basis to infer that he's talking to them about the weather our  that ok but i guess what is the new at this point there we don't have any evidence before us that his we have the evidence that he was convicted of murder well he murdered his mother and he was found not guilty by reason of insanity and he has some diagnosis what other evidence do we have that it affected this is worse that is that developed anywhere that's not going to go anywhere your honor your and your honor is entirely correct in stating that well if they could develop that let's assume that they could if they went out and they could develop and show that entitled who and second and subsequent hey vs would they be able to if they could actually make the requisite showing that it wasn't available at the time could they do that even if they didn't know that he is now mentally incapacitated he killed his mother six and a half all i know but beyond but that to me doesn't tell me that it affected rights receiving trial but but let's say they can get more which i've never you know let's say they can go out and they go and interview him many signs of declaration and says you know i was suffering dirs doctor says if i was suffering from this and i got it out and you know that they could get more to show that here i mean we don't have that here and then and whoever you know that the judge would compare that against the record and i mean you could be you know crazy but you could still probably you know sadly you can still probably be a good attorney too in some instances so that would but but the thing is would they be able to go if states they could develop something to show that it's mental you know they actually have right now we don't have any evidence in his mental illness affected this trial if they develop that's what they want to do if they develop that not on this case but would they be able to get a second set subsequent hideous if they could convince a court of that w district court rendered its judgment and you know perhaps they should have been more diligent and found that out and while following the obituary they have you know while the ca that way you know they have they didn't have to object or request for an evidentiary hearing they filed an objection they cited williams versus taylor which is the supreme court case that requires that a petitioner develop a special record and in most instances requesting evidence hearing when they objected to our request i'm just not fall i'm not following that you win because someone objects to what you want to do i mean that happens all the time we're not talking about winning anything other than our request that this court recognize the existence of his about the difference between the opportunity and the obligation that the government did have the obligation to provide us with that attorney tell his or her mother only mr hamilton so far the we certainly i can see that we had the opportunity to provide the document to the district court as i said in my declaration and i understand that we found it very recently but i do have a declaration attach that request and in that declaration i say that it arrived in our files at some point we have no record and no one can find out when we got it we did not get it from the respondents we think we may have received it from our client i was not aware of that intel last sunday when in preparation for this argument i went back through every few the paper in the entire case it was at the heart of it it was the government's obligation to provide a full and complete request for an evidentiary hearing that absolutely made relevant the state of health care petition given that this case does need to be reminded so that the mental health records can be developed and so that we can