death determination by the jury in two very fundamental ways first there's a reasonable likelihood that this jury never made the kind of normative subjective moral determination that california call for which is was the death penalty for ray allen appropriate under all the circumstances instead it's likely that they made that the death determination whether ray allen should live or die dependent upon the mandatory formula of whether aggravation outweigh mitigation even if the jury did answer the right question in this case of whether death was appropriate for ray allen it ignorance of substantial bases that favors a choice of life in this case in fact it did so in ignorance of virtually all of the evidence that favored life in this case they were ignorant of that because of the deficiencies of counsel this is a performance by counsel that if you look at the spectrum of what you expect from a trial counsel at the penalty phase was at the nadir it was at the very bottom the court found that he trial attorney literally did not even think about the penalty trial in told the jury verdicts of guilt were in hand and obviously with the death with the penalty trial right around the corner it was way way too late on any practical basis to prepare i full case for life and in fact all trial counsel did in the end was present one witness who for one who provided narrow testimony diane harris in mitigation aggravating evidence of the jail with salt that was defending against further aggravation but in terms of presenting a positive case for life there was the single witness and it allows the prosecution to argue fairly to the jury that this evidence presented by this witness was a mole one of mitigation at best it was evidence that was almost invisible that was as good as no evidence in mitigation and that's certainly what the district court found in this case and what the court also found was that there was a mountain of evidence that favored the defendant in mitigation of the penalty that could have been presented the court heard it over six days of testimony from seventeen live witnesses and considered another nine witnesses over twenty five family members and friends of ray allen were prepared and did testify about the extent of his goodness and positive values and life affirming qualities so that the prosecutor of course exploited the absence of that kind of evidence not only did it argue there's there's no evidence in mitigation presented but asked a jury where are the friends and family of ray allen to say anything good about him just so i think the most difficult part of this case to me not speaking for is the question of whether the absence of an evidence was prejudicial or wherever the particular circumstances of the killings and the particular circumstance of aggravation  it was important as touching as this evidence was and found it was touching evidence and that's especially valuable as this evidence wasn't found this evidence was especially value valuable when you compare it or to the aggravation in this case which was potentially extraordinary it pales by comparison it like it like disappears it's overwhelmed by well a couple of things there is that there was part of the mitigation evidence that could have been presented was his good conduct in prison for many years his his his work habits there  where you say that evidence was all based on from unreliable sources this jury was out for four days grappling over that evidence there was a lot of evidence crime was actually committed by ray allen so that when you put that lingering doubt together with the evidence that was present that could have been presented about the fact that this is a guy who's who's behaving himself in prison he's not getting in trouble he's helping to run the prison during their times of security which the evidence would have showed and on top of that you have a whole history of good and of course one of the other issues in this case is that the trial court excluded evidence that in fact ray allen was a conforming good inmate in the county jail during that period of time expert in this case said was the extraordinarily powerful mitigation of the sort that one rarely encounters in this kind of litigation is how there were so many people that came from so many walks of life to sa so many positive things about right alan i mean you can go back to the fact he grew up in an impoverished completely poverty stricken area as a native american who was pushed off to the marginalized land of oklahoma who left school in the third grade to help his parents eke out a living as migrant farmers who was not terribly traumatized or affected by the loss of his young sister from leukemia at a very early age who then was living in a chicken shack as a good man good father and son who became a preacher living a life of christian values and preaching the same embraced her and was like a father to her and you put in all of those facts and the question as as williams versus tailor made made clear isn't you know you don't have to address the aggravation case of the prosecution to form a basis for the jury to opt for life you can develop a case for life mitigation that's independent and die how can you have a fair and reliable decision if you don't know anything about the defendant in terms of his positive life affirming values up the court cannot say i cannot make that determination that this jury surely would have come back with a death verdict because that's the ultimate decision i it's it's more difficult in a jury context on this particular decision which is in some fashion non rational decision is not a fact finding it's what what punishment should be meted out it's a different kind of decision and yet strickland doesn't say that in a death case well presume prejudice because it's not the kind of decision we can make you know we're not talking about presuming prejudice but we're talking about a case where there was no credible case flexible one and the ultimate determination is whether he had a fair trial that's ultimately the prejudice determination and that's implemented in the williams decision where the court made that precise analysis and the standards that we're supposed to pry to we lay nests and you know how how how we how are these things that you're mitigation evidence for evidence would stay that for life i would make the argument that ray allen is not an obscenities on this earth with no redeeming value whose existence was the picture presented there with unmitigated evil he was pure evil in fact he has revealing social qualities we're talking in this case about the worth of a human life is ray allen wor saving yes it is because of all of the five ten fifteen twenty things twenty five things we can say about ray allen that it is good about him so that notwithstanding the crimes that were committed in this case it doesn't call for the ultimate punishment that's for the worst of the worst give that punishment to billy ray hamilton he's the one who did this killing kill these three people ray allen had no reason to kill talk about either because of mental deficiency or your illness or or deprivation of the private ground which surely mr allen has his reason to fight that kind of can be folded into the crime to make the jury conclude as our case is directly observed that in some ways you somehow less responsible for this particular crime it's so cold and calculating it seems pretty far removed from your roof talks about the kind of psychological evidence or his background how you what mr allen did from the punishment that the jury decided to give him well as was talked about in one of the cases that found  available much less than was shown in this case and the court found prejudice there because precisely because trial trial counsel didn't direct the jury's attention away from the crime the special facts about this defendant that might call for a lesser punishment than death and when you have a number of special facts about the defendant that that that you can use to direct the jury away from the crime set a whole different tone to ray allen than what's presented in this case the evidence shows that that character evidence presented at penalty phase can be extremely powerful to the jury precisely because it euthanized is the individual so that it gives them pause do we really need to send this person to death for his crimes there's some complexity there there's some moral ambiguity there's some there's there's some dimension to the individual that we should take into consideration and this court although hasn't always what's important what the supreme court has said is that the jury take into consideration have before them to be allowed to fully play on all those things about the individual that might cause it to conclude that despite the this individual should not be put to death and where you have an arguer failure to make that case to present anything to give the jury any reasonable basis and there was a tremendous amount of evidence that could have been directed to the individual qualities of ray allen away from the crime of course the second problem here in terms of of the prejudice is the fact  prosecution to suggest that once guilt was determined at the guilt phase that was that you know that question was over doubt was no longer at issue at the penalty phase he didn't ask for an instruction on lingering doubt what he did what the california supreme court found was his thesis was his thesis was there was reasonable doubt as to guilt he shouldn't even have been found guilty by you this jury and therefore should not be put to worst alienated the jury by saying you were wrong he said you know if the defendant was guilty beyond a reasonable doubt i could do nothing more here than get down on my knees and beg for mercy which is true because he didn't presents the evidence in favor of life but he says i'm not going to do that because he wasn't guilty beyond a reasonable doubt well he's arguing that to the jury that has just returned a guilty verdict so that this jury could not act on any impulses that it might otherwise have been fostered to fine for life you may have had death scruple jurors who were very reluctant to impose the death penalty who you could have have who would have been open to consideration of the evidence of good character and the goodness of reality the prosecution was very concerned in what year and in closing argument about the juror who might find that because ray allen didn't do the actual killings in this case that billy ray hamilton did that that was powerful fact in favor of a life sentence now so you're using your rebuttal time which you may do then ok let me then just speak for two more minutes on on why the there was prejudice on reliability on the second aspect that i've referred to today which is the fact that the jury understood or there's a reasonable likely from the arguments instruction of counsel that they were under a mandatory duty to return a verdict of death once they found agger if they did find that aggravation outweight mitigation under sullivan versus louisiana she teaches that if the jury in fact used the wrong standard you don't have a valid verdict to begin with you have you have really a structural defects here because it's not that you have a verdict that has integrity and you look to see whether the error affected it there's no there there because the jury never made the the adequate penalty determination ayling was serving a life sentence for a murder that in fact now would be a capital offense in california and that he can add three more people murdered on the outside was convicted of conspiring to kill seven people beyond that man who had ten prior felony convictions or ten violent crimes proven against him in the aggravating case and the fact is once you focus on those offenses and that aggravation twenty years later twenty one years later i've been with this case for twenty two years so we're talking about a situation in which a jury would have heard that evidence would be fresh in their minds and then they would have heard the additional evidence mr allen's past probably is probably not really clear what they think the jury is exactly measuring there but certainly what they're talking about there is such that there are factors about the defendant that while he may be a bad person is he so bad that it's necessary in choosing between a death sentence or a life sentence that the death is in fact the only appropriate  the problem for the defendant in this case is that many of the witnesses that they did bring forth were people as a district court found who had known mr allen at times in the past have probably been willing to testify as a primary case the significant thing is that what they're asking you here do is a gamble is that there might have been a conceivable that it might have made a difference but that is not what you're going to measure in this case it has to be a reasonable probability it is in fact an objective test about a subjective determination and when you balance