located to conduct a sensitive inquiry into all circumstances related to the the strikes by the in this case the prosecutor now in virginia's trial there were the why dear took place over three days and then the the peremptory challenges were made on the fourth day and at that time the defense counsel challenge to the striking of four white males i'm sorry of eight of nine peremptory as of white males so there were nine primes eight of nine were white males at that time the judge said he expressed skepticism that there was a that there was an equal protection that there was equal protection for white males but then he said to go ahead and  provide the race neutral reasons and so that's what put up you on that one is it clearly established law at the time of the trial that batson extended to the exclusion of whites number one and man number two i mean you know the the key cases didn't involve that but you know what's the it was that was clearly established for for a couple reasons one that's in the kentucky which of course was in the context of discrimination against african americans but nevertheless the plain reading of the of the opinion allows equal protection for it does not guarantee defendants to have jurors of their own race but it does guarantee that they will that jurors of their own race will not be discriminated against in the selection of that jury that's number one u s supreme court said that that's the batsman's i know but i'm asking has the to minorities number one but the explanation is you know it's really hard to see that case coming out the way it did without the history of systematic exclusion of african american jurors sort of acutely with african american defendants but here's the thing so i mean there are there are a couple things that go on like i said is that is the plain reading of the of the opinion numbered and that's just that part no where of course as it say that is it limited to course caucasians or white people are an identity identifiable racial group and again the the language in no way says but only racial minority racial groups it says racial group and the third reason for that is one of the reasons for bats and that in the course talked about this is that is the importance of protecting the people protect the equal rights or the rights of jurors the defendant and also to the extent that so that the community has confidence in the jury system and if we had a circumstance where white people could be discriminated against based on the the race of the  jurors and no one else then i am i'm afraid that the the confidence in the jury system would be or in the justices said we do not exist i'd agree that might be a good reason to extend it there are just well i think i think i think ok but for the same principle to apply to a white baki i'm just i understand that the analogy i'm drawing i'm just wondering about it i understand what was important this is an this is not an affirmative action process or exercise this was a trial of someone who is on who is on trial for her life or both defendants were so there and there's nothing in batson or for that matter  well you know we'll stick with bass because we know that was clearly that that was had been published at that time that says anything about providing some sort of racial benefit to minorities to make up for or to you know to prevent the disparate treatment that they have received in the past it is rather that everyone is entitled to a jury that is free from racial discrimination or selection based on racial discrimination so about the and that was also decided at the time of of the trial and that actually discussed and that went into what you can more depth or discussion of the community and the importance of the justice system but the other thing that's important here too is that of course is that claim has never been raised below or a suggestion is not clearly sound which has not been has not been raised well and certainly the kentucky supreme court presume that it was that eight strikes were offered the trial judge in three seconds time declared that the that proffered reasons were race neutral which i think goes much more to that it was much more likely that he was actually confirming that the eight offers were facially race neutral and then he and then said for whatever reason magical reason if the court of appeals wants to consider this a white man a protect class except them those objections for the record so two things one it appears that he wasn't is a good chance he wasn't deciding it at all based on whether or not the credibility of the of the prosecutor that he was credible or he did say the reasons were race neutral yes but i mean are can we at this stage of this case just believe that statement by the district or the  trial yes your honor we can yes and here's why as we know step two that is required that and that is is a quote from bass and that the that the the prosecutor has to offer race neutral reasons i thought he did that right and so that's my point is that the judge was confirming that those reasons that were asked were facia least facially race neutral for purposes of appeal to go up to the judge has to have some longer and more express or explicit discussion before reaching a conclusion as opposed to eventually in this case  listening to the reasons as they're offered and frankly you know making judgments about them as they're offered and by the time it's done the judge has in fact made a determination in his mind and you know  ok so a couple a couple of points on that one if there's nothing this and this isn't claim that he has to spend a particular amount of time but what the evidence is is that he spent three minutes decide i'm sorry three seconds deciding i mean th second rule in the supreme court well but keep in mind that he has to make a sensitive inquiry of all the circumstances and so i would say to you that it is physically impossible for the judge to have done that for one person much less a say i wholeheartedly agree in that amount of time this is your best case the supreme court doesn't have to say that you want to what the supreme court said my best case is batson and that's and they set a sensitive inquiry into all the circumstances but and what's clear well i mean at some point yes we do have to use common sense and decide is it humanly possible for a judge to ever consider eight individual strikes and consider all of the circumstances and all of those jurors keeping in mind that went over three days plus an additional day plus there the whole time like you just walked into the courtroom and this is sure but here's a really strong indicator that he couldn't possibly have done that which is a first of all i thought i would suggest to you that he is humanly impossible to begin with because that would also require him to have considered the jury strike sheets and the questionnaires it would have required him to have memorized all of the testimony by those jurors over four days and not just those eight strikes and not just the thirty six people that made it through the up to the peremptory stage but also all of those jurors that were struck for cause which is another i believe twenty some odd jurors so but here's why we know that that didn't happen and that is one day before that which was to say this was on february ninth the day before defense counsel for the codefendant approached and asked the court to see that he had forgotten to strike he wanted to  want to ask the judge to make a ruling for cause on a juror who had he had he had failed to ask her for it to be struck at the start of the time and what the judge said and this was one  one day later as opposed to four one juror as opposed to eight and he said and he could not remember and at that time said and i have no way of going back when of course he did he could have gone back to and looked at videotape but what we know from that is two things one that he  that what we know from the supreme court precedent is that the trial judge is responsible for step three of batson which didn't happen here and it findings by the trial judge so under these circumstances where there was no step three analysis what has to happen is that this  petition has to be the hayes petition has to be granted with one of three options and i suggest that the appropriate one here is that the the court order a condition upon a new trial because you know i'm going to before we get there and push just pursue the line of questioning to its character john i mean i feel like three seconds is a little bit of an exaggeration because i don't understand why a judge isn't thinking about each of these points as they're listening to the prosecutor so that that seems to be fair game well it's not as if bats in comes on a nowhere may come out of nowhere that's being applied here but they're certainly aware of they've watched this whole thing unfold so you have to give them a little bit of a benefit of the doubt but i guess my real point is this surely there are bats in cases where it's incredibly obvious that it is a fanciful batson claim it doesn't take three seconds it doesn't take point five seconds it takes whatever it takes to say no so you just can't have a rule that's you're trying to say forget whether there's authority out there you're trying to say there's a rule that says there's a certain amount of time it takes for a step three thing and that he can't be right because there can be frivolous i think they can just mistake the race for example you need well time to assess that that's if that happens again so so the the prosecutor says i'm is this is going to force us into a facts and circumstances test which it has to be but it but the judge cannot abandon the step three requirement he can't say oh i'm not going to do it the promise of my question the promise of my question is that some cases are going to lend themselves to three or point five seconds because they're incredibly frivolous bratz include i'm not asking for others will require two more days of testimony and maybe an expert so i don't understand what we do with that range of possibilities which i think you're agreeing exists because we need to say there's a clearly established rule that doesn't allow what happened here and i and i hate to go back to baton but i suggest you that the rule is that the trial judge must make a sensitive inquiry into all the circumstances that's the rule in this case i can tell you on other cases i can tell you in this case that didn't happen it didn't happen for one and it didn't happen for eight and as we know under batson there it only requires one jerk who is who is struck based on race or under racial or in this case or gender discrimination before the conviction must be trial should be granted because it would be specific about the jurors as to which are the ones that it really wasn't plausible to me i thought the best argument you had was this idea that some of the things had to be consistent or maybe were inconsistent with the questionnaire it was very hard to assess what was being said by the prosecutor versus the questionnaire what give me the the best examples of jurors where it's a it's a it's a tricky question and it's just not possible to do that in the time this judge did it well i think that there are there are there are a couple first of all and this goes and i want to know this goes to what the judges requirement is which is to say he needs to to examine the record all of the all the circumstances that one of the jurors was the reason he was struck is because he had a grade school education now that discussion never came up in the void here which means that the only way that that could be confirmed or refuted is by reviewing those those records the jury questionnaires and that would not be just eight of course it would be the judge would have had to have known all of those things long later examination proved that was wrong no it was actually it was right but there were circumstances where later examination of what the jurors said what the prosecutor said was wrong but it's it's reversible when you do an insensitive no not that's not alice and that's not right i think it's important to stress that's not my claim my claim is he did not do the analysis and we know he couldn't have done that analysis in the time a law did given all of the things that he could have considered and so any one of them is education it's it's really a fair point how could you go back and check that it's doubtful it was memorized but you're acknowledging it turns out the judge was right about that of the prosecutor was right about that because he said that he was blood brothers with defend defense counsel one of the defense counsel and that he had had a conversation about the death penalty with attorneys brother who he went to law school with and that was false he in fact didn't know other than he knew that his brother was a law student the defense attorney didn't know the the juror and there was no discussion he actually said that they didn't really talk about  the death of this is one where it was inaccurate that's correct what the prosecutor said was inaccurate and that's been proved sense correct and how does that show race based or sex based it shows that the judge didn't do his job his duty his responsibility of the step three batson analysis along with of course all the other reasons that i mentioned in my limited time here if i can i'd like to address the the second applied or they decided that the investigation was reasonable based not on any sort of examination of the investigation that was done or whether or not the investigation was rose to the level of regarding investigation that was that the attorney make efforts to find all reasonably available mitigating evidence so all reasonably available medicating at it and we know that the defense counsel didn't do that in this case because there were a great number of several witnesses who testified regarding a another important aspect are very important aspect of the of the of the mitigation strategy is that virginia had been abused as an adult by a great many boyfriends an extra and none of those interviews were done there were all  evidence that was presented that it was none none of those people were interviewed not only that there were medical records establishing or confirming that that that she was abused and those records weren't provided to be either the one and entered into evidence were provided to either one of the experts and in fact those records were not requested until january twenty fourth of two thousand and the trial began on february fourth so i think it's fair to say that that investigation fell below reasonable professional norms but that's not all that of that of that performance that was lacking one of the perhaps the most important evidence that the jury didn't hear was that virginia suffers from a brain injury which the neuro psych neuropsychologist i'm sorry dr allen and he really a mixed bag for you i mean get the records but as it turns out dr allen he took he told the trial judge at the time of the beginning of the penalty phase that he was not going to call back around because he didn't have his his report from he had not yet received his report from around and he told the judge the reason he hadn't received the report is because he hadn't gotten a report from dr schilling who is the other the first expert and dr schilling is the one who said there are more investigation needs to be done and recommended why that report from dr schilling wasn't available is because trial counsel had not requested it until october or middle or even november of two thousand and the reason but here's the thing the reason he hadn't is because he took a leave of absence and when he took that he took a leave of absence expected someone else to make the to do those efforts and he didn't because he whatever that attorney was supposed to do took another job so we're not talking about investigation that was in any way i just want to spend one minute talking about the victim in this case my mentor when i started this job always talked about how capital cases especially oral arguments it seemed like the victim was the one person that never really got talked about very much and i just wanted to she certainly didn't deserve that but but never the one the son the batson thing what's your response to the two jurors that he points out you know so clearly batson does talk about a rule of you know the step three something has to happen and step three at a minimum there's a finding and how much deliberation not clear but he he's concrete about two of them right one of them about lack of education which would be hard to confirm the prosecutor was right without checking it turns out i guess he was right in that instance or she had a number the gender of the prosecutor but then the second one i guess was wrong about who this juror knew would you respond to those two pretty concrete objections m my response would be that unfortunately i know mr burks and same spot i am because we've both worked against each other now probably fourteen years you take these cases over years after someone else has started and you as you kind of run through this stuff you find things that you didn't realize were there or that someone got wrong and in particular the first juror he's talking about seven seven six is nicholas edwards  edwards had a great school education that's correct but that was the third thing that mr larson the the calmest attorney in fake county noted to the judge when he brought up by struck mr edwards first he said that one minute he said he didn't believe in the death penalty and then the next minute he said he did if you go back and look at mr edwards testimony which is transcribed as well as in the video record that's exactly what happened the judge asked him can you accept the maximum or the minimum penalty and he says yeah i can i can consider those then prosecutor asked him the same question without noting he just says maximum or minimum and the guy said yeah i can do it so then they say well what do you think about the death penalty and he goes oh i'm against it and so then the prosecutor jumps back up and says well wait a minute you just said you you could consider it you could sort of the maximum oh when you said maximum i thought you meant life without parole so that was the beginning point for why mr edwards was on their list he literally and he did it again later they at another point he mentioned he could maybe consider it and i think he said a drastic circumstance but then i get up at the other one and the other one it was seven twenty three that's mr quest and the thing excuse me you're with mr quest in the first portion of the objection is that the defense counsel attempts to create a familiarity with him fact that he knows his brother went to law school with him that sort of bleeds into asking him some of these other questions you know what we had this law school class together we went down to london and there are the these are questions by defense counsel yes counsel talking to that sure and then that juror mentions that yes you know i am this guy's brother that you're talking about yes he did mention that class to me we didn't talk about it much but i am aware of it is that the classic you guys went down to london and went to a jail and the defense counsel says yes it is now he at one point there at the beginning says he's practically blood brothers for him to the juror practically brought brothers with the defense attorney all i can say about that  is if you had any experience with ray larson as a prosecutor it was an exaggeration typical of his personality it wasn't meant that he actually was a blood brother or that he was saying that they had some sort of secret relationship or anything like that it was more just trying to get a point across about the familiarity issue that he didn't like but really troubling thing here that the trial judge goes like that and says i reject all of the challenges without doing the kind of analysis that you're doing i don't think so because in my opinion as was pointed out earlier by judge sudden you've got yeah it's over several days but if the judges is somehow has amnesia day for about every juror here we're talking about thirty six people approximately that i think that's exactly right that were qualified for the jury pool but if you if you lose that they whittled it down to these fifteen people and so the with the ones that are struck if he doesn't have any memory of every one of them then why do we even trust a jury to have a memory of a week's worth of testimony you know how how can we trust anybody to remember anything i think he listens to those arguments he he certainly if he doesn't recall it immediately he can he can recall it as as he's listening to the argument and thinking about it so i think one you can assume that he just doesn't remember anybody right at the beginning to as the prosecutor talking about these people and raising these objections he can recall the same circumstances the prosecutors noting and i think a critical point to which this idea that the judge was essentially going through the motions because he didn't really believe that this was true batson issue i think is right i mean if you go back and look at the case law as you mentioned there's no clearly established case that says that this would be a batson issue we've got a white defendant got a white juror batson involved minorities black defendant black does not cover this particular circumstance and i apologize i did not take french an in high school or college so it's eklund versus look euro ninety five excluding white from your persons so this won't this the judge in this case his analysis if anything else or his his reservations about whether or not batson would even apply he actually was right but they still went through the process anyway so you're jumping through all these hoops does he have to make express findings no the supreme court doesn't say yes to make express findings is this even a batson issue at all i don't know if that's the cart before the horse or the horse before the cart but both those things are stream lee important before you even get to the fact that in my opinion the reservations that mr burke has about the reasons given by ray larson during the bats and hearing the sensually he was actually correct or you know the one thing he wasn't correct about was the practically blood brothers and i don't really know that that's something you decide was correct or not correct me but they you know it was definitely an overstatement of the relationship but again that was part of an issue because in in  addition to that he mentions that and this may have a lot to do with why you sort of have to rely on the trial judge here but he mentions that you know while they were down in london with her murder harding you know bashing the death penalty well i went to university law school so i and these people in lexington where that school exist roberta harding is an outspoken death penalty opponent who is on the faculty at u k it's great teacher but i've dealt with her my whole career since i've left there because she's typically you know she gives lectures and seminars and that sort of thing so they know who that is and i thought it didn't come up during the london you said well they london kentucky they must have gone to a prison and one in kentucky i don't know why certainly defense counsel would have jumped up and down if he were the person in that class and mr larson says will you were down there were harding you know bashing the death penalty in why would he speak out and say no that we weren't there with her that was it who we were there with you got it all wrong he doesn't no one speaks up no one says a word and the judge gave the same treatment to when the prosecutor raised the baton claim with regard to the striking of african american  jurors the process went exactly the same way as far as the timing in the consideration so i'm trying to give this judge the benefit that doubt that he remembered who these people are i mean this isn't a big town this is you know it's not a huge jury pool i probably look like a fool but i don't think there's a race claim because it was a gender claim from the beginning there's no doubt that that's all mr west is talking about when he raises his objection and for some reason on direct appeal when the department put out c file their brief you know you think i guess people here bason and they seem race and so batson is there and you know race and gender talk about countless brief response to it they talk about it supreme court talks about it like he's reporting and so why they felt the need to do that and not focus on the fact that it really was just a gender claim i don't know and that again raises the same issue with  the judge as far as his statements about this you know if this class is protected you know are white males protected the same we're in the same boat j b u or says alabama but the u s supreme court it says civil and criminal cases gender is protected in this instance but it was a civil case involved a child support issue and or a paternity issue and why should it be any different in criminal cases civil well it personally it shouldn't be but the fact that the supreme court said that in a case that was in a criminal case and so it's not clearly established federal law going by the a standards i don't i don't necessarily disagree with mr burke about race or gender in this instance as a policy issue but again and maybe as a predictor the supreme court might turn around and say that both of these apply when they finally get him but the fact of the matter is they haven't they haven't said that gender in criminal cases is protected and they haven't said that  white defendants with white jurors is pretty protected since the kentucky supreme court looked at it as gender in race don't we are we supposed to do that even though that seems to defy reality or i think my opinion is raise this in state court they didn't raise a fuss about it but again it's you know you're talking about the telephone size brief telephone book size brief that's like a four page batson argument and they just weren't say all over look at i know  phone book and you can't get that right well when you raise twenty some odd issues and he sticks i mean you're throwing a lot of against the wall to see if something will stick i think again it all started from a miss a mistake on the part of the people that filed the the the department public advocacies direct appeal brief and all of a sudden everybody just went on and i think the supreme court as they say you know there comment is something to the effect of well sure u s supreme court has never said that white males are a protected class but these other courts have so will go ahead and just say we're view it and say no they just sort of it was almost a throw away well we don't this doesn't really count as it to this report as it said this but you know we'll go ahead since we think it's wrong anyway and kind of reviewed it when they probably shouldn't have  and why it wasn't noticed until now i don't know and not at the beginning but i would i would argue it's procedural default that if you find that it's not then certainly i think the other problems that they have with it as far as the lack of express findings not being something that's required and then the other two issues about whether whites or or gender are protected in this instance what would take care of it  with regard to any effective assistance of coun i don't want to start with prejudice because it wasn't something that was explicitly reviewed in the kentucky supreme court's opinion but nevertheless then we were due to do novo correct correct but seven witnesses she had a mitigation specialist she had an investigator she had two attorneys you know she had two experts you know they looked into everything you could look into they presented all of this evidence was it presented in perfectly packaged in a way with hindsight that they wanted it to be packaged probably not but was it packaged the way someone who is in the middle of a death penalty trial and or preparing for a death only trial and would make reasonable that and having done this for a while and i'm not trying to suggest anything you know any mal intent on my opponents but those day after day that you're always file of then there's no know there's never a hearing there's no cross examination there's not really opportunity to go any further but those are always a simple it's almost as important what they don't say is what they do several of them say i never talked to mr west before i testified well did you talk to the mitigation specialist did you talk to the other attorney probably probably not i don't know i mean it's possible but my guess is that there probably were other contacts where mr west may not have had direct contact with every single person but he had certainly a lot of contact and most of the mitigation witnesses the problem come came from the fact that apparently miss carter wasn't being cooperative with her own attorneys so if you have questions about th say so little or they just say what was already said in a different way by a different person but the all of the information was already there as was pointed out earlier by judge kessler the the dr alan wasn't called to testify for a reason he he did more harm than good one of them said that she said that her father didn't abuse them right she said i understood that there are cases that say that this is a fairly typical statement of people who have been abused and who have really don't want to admit that they were abused well that's possible but it still would have undercut the rest of her witnesses and no one from between dr schilling or dr allen said anything remotely similar to that in fact dr schilling said that well she's got this cerebral dysfunction but you know dr rounds important because he can say things that i can't say like whether or not it came from a head injury or all the drugs she had done well then dr alan comes along and says she has cerebral dysfunction it's probably from a head injury or all apologize would certainly have loved to say yes that's absolutely right but i don't know you for being honest yeah i would be happy with just complete candor i'm not positive but to the extent that  you know they're raising this is a claim that she somehow had all this evidence that would have tipped the scales in her favor it's just there's no way there's literally no way all these people did it i mean her brother complains in the affidavit that he didn't get to say a lot of things well her brother practically i mean he broke down on the stand and was inconsolable it was you know it's one of those things where you know mr west the attorney that was questioning these people he can't testify for i mean it would all be speculation these people are from whitesburg it's all you know they're very they talk about in some of their affidavits about how everybody sticks to themselves and you know you're not aware of a reason that would matter in terms of the merits of her quite correct correct i think drawing out of and more information similar to maybe what they've packed into the affidavits i don't know how you could have done that without just speaking for them which is what the affidavit is pretty much do you know i mean can you remind me at least what the record says or doesn't have with regard to whether the house all investigated the testimony of the abusive boyfriend really can't account with coun where what they were going to testify to yes i well i assume so in the sense that going from virginia call herself and dr shilling that information was all there maybe i don't know if he ever talk to those people or that they gave him any sort of information but the the fact that she'd been abused by garrett and blame by the grandmother which is probably the most compelling part of that which got in through virginia but i think any of that information he knew of he just it was coming in from somebody other than that particular boyfriend and again she and she ran with a crowd that i don't know that they would have gotten much out of these witnesses anyway they look great on affidavits but  don't always look great in court if it seems that you put cardinals and post conviction lawyers in the impossible bind if you say that having these affidavits isn't enough that it isn't enough to get further evidence through materials or to require that your side cross examined examine these witnesses and in other words they have that the david saying i was never contacted i wasn't contacted in time i wasn't told how to testify i would have said that she had had a terrible childhood and so forth and so why isn't that enough to put the burden on the state to do further work to present the other viewpoint was certainly not to put them in a bind it was more to answer your question with regard to taking something from that affidavit and just assuming it's fact without looking at the negative inference what that's probably there as far as who was talked to or when they were talked to and that sort of thing if they'd presented affidavits that perhaps had new and compelling information that should have been presented and wasn't then certainly that would be something that would make a lot of sense  but kind of elaborating or adding to if you're going to be caught that amending and then saying in a different way stuff that was already said that's the reason you don't have to go back and do that because you know having thomas garrett who will you commit suicide to he that's a bad example one of the other boyfriends that said he abused her well  would be that he talked to her as well as miss cottle and but he could have talked to her family i just don't know i'm sorry but i'm a question so thank you very much have five minutes to make this quick but much of what i heard from mr kronk over the last thirty minutes at least over the last fifteen minutes regarding ineffective assistance was blatant speculation he as judge moore pointed out he doesn't when he doesn't like the what the affidavit say he wants to disregard them and yet insists there's no reason to have an evidentiary hearing to determine exactly what investigation was carried out by the trial attorneys one point before i go i want to move on that he claimed just before he sat down that they had a close working relationship with the mitigation specialist but we know from a from a letter which is in the record which  that as recently as six weeks before trial keeping in mind that they were hired a year before trial six weeks before trial she had compiled her mitigation report that she had she hadn't collected medical records or actually she didn't request medical records until days before trial so she wasn't having she didn't have a close relationship with the with the investigator with trump turning in fact that letter says quote please help so i think it's important here when word addressing the court that we speak what you're arguing is that had these other witness witnesses testify these scenes would have been more concrete is that a fair characterization well that's partially that's partly true first of all we know that the failure to present evidence or presenting it in a flat way when it could have been better developed of more details and more effective mitigation we do know that that is not one of the evidence in there and this this circuit has found that in well but that's only part of it the other part of it is the the evidence of brain damage which the united states marine corps has said goes to the very heart of the role of the jury in deciding whether or not to send someone to death because it goes to moral culpability and evidence at trial with first of all there was no evidence from that there was nervous like psychological testing establishing brain damage dr schilling testified no that he had done a based on a conversation a life history with regina had decided that her head injuries did not amount wouldn't cause ironically wouldn't cause brain injury because he  injuries to football players but the jury didn't hear the neurosis the neuropsychological testing and the reason they didn't i'm sorry dr allen and they didn't hear dr  here in sears me up in the united states supreme court found prejudice despite the fact that there was evidence that supposedly was a double edged sword regarding a person at the defendant having a personality disorder supreme court said is that just because there may be something that the makes the defendant seem less likable to the jury what's important is that allow it humanized the jury i'm sorry the defendant allows them to understand the the defendant a little bit more so to say that that some here is that it undermines what in fact was a do it it doesn't do that at all your honor a dip isn't it true that a defense team in fact at this trial is the father was extremely abusive the the theme was that he was extremely abusive to he was he was when he got drunk he was extremely abusive to his wife although that the presentation of theme was that the trauma of the childhood trauma of a young girl witnessing her father and by the way there was evidence that again affidavits that should have had a hearing so that they any way in which you request industry court and this in th e in the state court show of firing a gun near the girl where she was huddling with her girl with her grandmother you know losing control of her bladder because of her fear shaking in her bed none of which the jury none of which the jury h so was presented post conviction in the state court it was but of course we weren't grantor never danger hearing so there are only affidavits which is why there was a request for an evidentiary hearing which was denied and the reason it was denied is because the court applied the wrong standard for the four whether or not it was a reasonable investigation again the court decide decided it was based on what was presented rather than what could have been presented it was actually investigated which it wasn't and that  allen it goes to the to the hospital records it goes to all of the witnesses regarding abuse and it goes to the to the witnesses involving about a doctor odds want to make sure i understand your explanation as to why the c e o a covers  around so it would seem potentially to do what is on sixteen a i guess your sub claim was whether call deals trial counsel is constitutionally ineffective for failing to call additional witnesses during the penalty phase of proceeding so you could say dr allen additional witness i guess that's the way you could think about it but as i understand it sixteen b was about ineffectively using experts which would more specifically be about that topic and then in our c e o a order we talked about additional for why dr allen and the arguments about him are included in the c e o it just ok i'm sure i'll dr allen had been had been part of the process ever since the eleven forty two stage which is in state court he was consistently part of that in p conviction in the district court in your seo way application understood some claim sixteen a you referred to dr allen that's the only question i'm asking i don't i can't tell you what i don't have in front of me but i can tell you that the why is he part of the the request for the c e o way went to the penalty phase mitigation investigation presentation that sixteen b is about in effectively using experts he's an expert he is an expert judge i don't have i do not have that in front of me ok all right well anyway ben but i just was and just wanted to make sure it was within the c e o i almost i am i am almost certain that it was within the c ok my time is up but i'd like to take two seconds to to wrap up here number one i think it's important for the court and i understand much of the much of the question that was going on in the with m with me about whether the jurors were credible or not credible was the role of the trial court first which didn't happen this court is not in a position and under the under supreme court clearly established law is not that is not the the role to decide whether or not those jurors are credible that is the job of the trial court which never happened because he never did the third step about validation and secondly there is a myriad of evidence of deficient performance and prejudice towards mr ms caudle in penalty none of which was we were denied a hearing and in a state court denied a hearing below and as as counsel for the for the government has asserted has acknowledge some of that is proves that the division put that there was deficient performance a hearing is required here in this this quarter grant the writ on both claims thank you thank you both for your argument case will be committed with the court adjourned court