the penalty phase ineffective assistance of counsel and then i'll turn to claim five which concerns the evidence that mr duncan was not the actual killer your honour's in the ten months between the plymouth already hearing and the trial in this case trial counsel devoted only thirty five hours to preparation for the case and that as the district court found that included no time spent on investigation for the penalty phase until the morning that it began as a result the jury that and they believe that there was next to no mitigating evidence that could be presented on his behalf only four minutes worth was presented these assumptions were all false a wealth of mitigating evidence was actually available the trial counsel could have found except that never looked for it the state does not challenge the district court's factual finding that counsel and d h did no investigation for the penalty phase until the morning it began the state is not attempted to explain how performance could possibly be held not to be deficient when trial counsel did not investigate or prepare for the penalty phase in light of this unless your honour's have any questions that you'd like to me to discuss regarding deficient performance i'm go discrepancy between what counsel did investigate and present what counsel could have investigated and presented a trial counsel investigated nothing and consequently he presented only four minutes worth of mitigating testimony the discrepancy between those four minutes and the enormous body of mitigating evidence that counsel could have presented is gigantic and we cannot be confident that had that evidence been presented at least one juror would not have found a life without parole rather than for death i'd like to focus on a number of points that respondent has not disputed concerning prejudice and show that these taken by themselves are ample for a grant of relief there were a number of important themes  d by evidence that was uncontested in one contradicted by the prosecution and by the state in this in these proceedings none of which the jury heard anything about first duncan was repeatedly exposed to serious family violence as a small child witnessing his father attempted drown his mother witnessing him choking her sufficiently to require her to be sent to the hospital witnessing him seeing her him substantial achievement to have avoided gangs and drugs throughout his childhood and high school years there were powerful humanizing stories i could have been told about him by friends and neighbors and teachers and he had a life history of passive behavior in which he was guided his peer group and when his higher achieving friends and sister left he lost its way and fell in with the sisters drug using crowd the state does not contest that these points were never raised at trial and the on even nominally inconsistent with the petitioners experts and the points that have just raised cover those points that he never disagreed with taken by themselves and these points are sufficient for elites so  involved but a single victim with no sexual assault no child victims and we have a good thing and that with no prior history of violence of all barely out of his teens when this crime took place in the spectrum of special cited particularly churn jennings decisions of this cork showing that a disagreement between prosecution and defense experts does not restore confidence in the verdict when the petitioners experts have and offer and i'm quoting dr jones now offer useful valid and sensitive indicators of the types of brain and behavior dysfunctions in question in this case and quote so i think it's fair to say that dr jones express experts to testify that the evidence you're hearing how does this disagreement how does that or should that play into the decision of whether or not there was preggers well i think you're honest if you just take it out or you  the state's expert so completely devastates and the case the methodology of petitioners experts that this court can make a decision that it's the evidence is really insufficient on her my confidence in the outcomes but that's not the case brain damaged a frontal lobe impairment of the kind that  so i think we just put this package of mitigating evidence together for example to undermine confidence in the outcome the state's also disputed the and has raised just a few about whether duncan or the bandages missing from it so i think that that the notion that a bloody handy like rag would have been around there for days or weeks before it is highly improbable and when you put together that entire constellation and configuration of evidence it's both the testimony of mr fein and the bartender who testified that it was a normal and ordinary customary practice for the floor to be washed carefully he's testimony that the person who washed it was there and the other two records that the police not nothing and that the police obtained from witnesses from two independent witnesses the police notes of their interviews with entire constellation of evidence i think it's quite implausible and very difficult to understand this in any other way but that type may be blood was in fact shot that night and certainly that's a of felony murder in the guilt phase and i think the first thing to be said about that is of course of required going to such choice trial counsel truly believe that the jury he could persuade the jury to read nor the evidence of the fingerprint in dawkins blood and that showing someone else was there certainly much more powerful evidence than the kind of evidence that he did present at the trial if someone was walking by someone had been fired by the victim a week before he could have presented that made think have presented this evidence to prove through an expert witness to demonstrate someone else was indeed there that made the kind of arguments that we've made here today at the most reasonable inference from that is that the other person was the sole attacker it took only in light of the evidence of the police officer for that fact now from that i think a number of inferences are are possible and i think let me say that i think this approach is spitefully because i think the evidence of mr duncan himself as to what happened you know would have been subject to attack itself berthing here we have objective scientific evidence indicating someone else present and i think that evidence has been presented he could argue two things first regarding the penalty is at least not a substantial argument that mr duncan was not the actual killer and intent to aid in a killing requirement for the special circumstance there was only one special circumstance here and that special circumstances require a jury finding that duncan either he tended to killing jury pressley found that duncan intended to and did kill and that but i believe that finding has been undermined the evidence that someone else was wasn't there and was more likely the actual killer in something i said the special circumstance yes it was your honor because i think the that it clearly undermines confidence in the conclusion that duncan killed and intended to kill and the question w then is one that the jury never examined to be in ten to eight in a killing and i think for that we're talking about now a completely different picture of the entire case i think it's it's impossible to be confident had that possibly been the posture of the believed foolishly perhaps a reason i were you know we're talking about a young man with limited i q who's function has not been improved by drug addiction either he could well have thought  her we'll take the money i'll run away i'll never be seen again or they could have been surprised to discover that she was there believing that this would be a theft not a robbery and and the other participant could have been the one who killed without his involvement i think quite plausible if you consider the you know particularly consider the psychiatric and other evidence that's been presented in conjunction with claims that in t v you can see that all together i scenarios are entirely plausible i think the question of what the jury would have believed about them is on clear the jury would have had to find beyond a reasonable doubt that duncan intend to do it in a killing and i think we cannot there are serious doubts about when they might have been deposited it and i know that accounts for mention one of them being in a bloody few print print is a very likely place for cross contamination if you can pick up a lot of things from a lot of different places but i would like for a moment just to indulge the court to assume for the sake of argument just just for a moment that all of the various influences that duncan wants to draw  three droplets ten be drawn that the a b add to jeanne's did come from that they were deposited on the night of the murder and that they were somehow connected with the mother so i would like to point out that they don't need to be months old or weeks old placed another person there another person actively involved in the murder the blood evidence by soft wouldn't have diminished duncan's role in the crime certainly not considering that duncan is the one that has the victim's blood on his hands necessarily from the blood and it's especially with you very difficult if not impossible your honor to draw that inference from the three blood droplets without calling duncan to the witness stand and that's another thing i don't understand  because in the minds of many jurors perhaps perhaps any juror a crime by two people acting in concert wielding knives against one's helpless victim is even more aggravating than a one on one attack well two people surprise proof would be the theory that it was done to people there the other person's blood is found not duncan's and therefore  night of the murder and the prosecution's theory is that duncan did that to give himself an excuse to answer the money will excuse me now i need to come in and sign my sheet i forgot to do so that would mean duncan would have entered first he's well lack of remorse comes later in the penalty phase we're talking about whether it's clear beyond a reasonable doubt that he was either the killer or intended that the other concerned your argument about why it was the reason that it would be helpful to duncan not to show that there was another person who may have been the one who stabbed this evidence of the a v antigens had been presented it would not detract from the special circumstance finding even if another person is there which again relies on a lot of leaps and inferences from three droplets but even if you find somebody else were there never going to come back he came back to work on his next scheduled shift i'm going to check my time because i did want to also address the other client that if there were any more questions about about that the various expert testimony could have been presented which should have explained why duncan became a cocaine addict or why duncan had a cocaine habit in in any event and after years of paid this investigation they failed to prove that and the district court made a finding that all of the expert testimony which the judge which the court meticulously laid out in its order would not have made a difference in a penalty verdict what coun strategy but i would suggest that the strategy that trial counsel actually pursued a trial or the evidence that was actually presented it was more humanizing than the theory that duncan is offering now and the reason i would suggest that eventually commit crimes like this in order to feed that habit the penalty phase evidence that was presented to the trial from sally members was that duncan was a good natured person for most of his life  was an easy going person that everybody got along with them that he stayed away from gangs that he and he did a decent job in school that he had that he had a normal family life and that if you just look at the last year year and a half or so of his life when things suddenly went out of control he's young he's only twenty he made a bad choice in life he got involved in cocaine and now everything has spiraled out of control and turned him into what happened on the night of the murder that at least shows the jury was up until he became involved in cocaine now frankly i think the jury was probably more impressed with the are more interested in the person that he was on the night of november thirteen thousand nine hundred eighty four than the person that he was before but that was a reasonable type of behaved well and they are left and then they fell under the influence of this bad group of people well i guess i would to an average jury the fact that he fell in with of that group it's said hypothetically a madman must have done this crime and you members of the jury have decided soviet that it's my client but turned him into the madman on that committed this heinous act the jury might not care why he became a honor perhaps they both could have been brought out you could theoretically throw the kitchen sink at a jury but there would be at some point a little bit of this confidence here because even if the evidence is not natured child and young adult without the other part of this panel the a strategy would be trying to present also i'd like to point out that as the district court found a lot of the evidence of his of his background the positive that morning i had a brief discussion but that there was no preparation of the witnesses to bring out more than a very cursory answer it does help to discuss all of the there was never a discussion and i didn't realize the evidence about the meeting at the last minute during the trial there was also evidence in the record that counsel and made many attempts to call meetings and to get family members or people in the  talk to reach these people that i apologize but that i'm not i'm not positive from the record and also i'd like to point out with the thirty five hours of preparation that there was also that was based on the records from when know that it backfired it's like there's just not a feel for the that this guy had a strategy and overall theme that he wanted to convey to the jurors is it's completely lacking in anything and deficient performance regarding the cocaine experts he has counseled did far more than thirty five hours worth of preparation he based counsels that investigating this case for years and weeks and i see what they have come up with and what they've expert indorsed somehow the methodology used by dr roman quite to the contrary dr jones stated that she did not use standard neurological testing even for those times that she she did not use any kind of brain imaging  scatting which we would also use now of course you could state to a degree of medical certainty in her opinion that he suffered from brain lesions and that she didn't even use the right norms when scoring the various pencil and paper tests that she did  have come up with and it's well first of all he is the czerny has years of preparation and the benefit of hindsight which the trial attorney doesn't have but also the test is the moment you took more than a day to prepare the penalty for this you capital cases where the client just wants things to progress quickly because they think they can get a better result whatever i don't want to speculate there again that's that's outside the record but but the test isn't whether or not to state what she stated and presumably the people would have had an opportunity to read that would that have made an impression on the jury and we have we have like the psychiatric report of dr mark a man  to eisenhower i believe it is mr duncan named the three warring factions in the former yugoslavia as bosnia serbia and croatia all of these things and mr duncan apparently was able to  chronic cocaine abuse and when duncan is now offering her opinion to prove that organic brain damage was a causal factor and that led him to cocaine addiction and we have has to say and undermines any claim that her opinion undermines confidence in the penalty verdict i'm aware that the court expand at the certificate of appeal ability to include clue three other claims and with the duncan more than halfway on the way to death row and put all his eggs in the basket of hoping for a better penalty defense all things considered yes perhaps counsel could have made more of an investigation in this case but i would submit that duncan is not show enough of a showing of what that investigation would have led to either an acquittal on any element of the guilt or the special circumstance where a month favorable verdict in the penalty phase  and the police fingerprint expert who missed the match initially explained how we came to miss that initially and explained that at the time he didn't have the palm prints of  duncan and that when he had the palm prints and i think there were three palm prints of the crime scene he made an absolute match on that so i think the plausibility of relying on that in this on the state is quite low but in any event if he had destroyed it that's a strong argument notwithstanding the fact that an expert who's not contradict it is absolutely certain these are duncan's prints of he thinks he can get past that if anyone reasonably thinks that close a question then the answer is also to put on the evidence that someone else actually wasn't there so it's really just not an explanation for why not use this evidence that counsel thought i think deluding himself that there was any chance finding of fact that is investigation began them the day after the guilt phase was over which is to say the morning of the penalty phase which began the record shows at nine thirty that morning there is also in the record the check liberation of i believe that is mr moore who was trapped councils and tested gator unequivocally stating that trial counsel never asked him to investigate anything about duncan's background or fine character witnesses for hearing he certainly would have not engaged in a penalty phase investigation or anything that traditionally would have been considered one at that point as part of a twenty five hundred dollars payment now counsel argues  counsel's view and presentation was dumped in the head it had had an absolutely ordinary life there was nothing wrong with him and the trial counsel's presentation and it was totally duncan's own personal responsibility because of his weak character that became a drug addict and there's a substantial body of evidence that indicates there was things that impelled him in that direction including brain damage including regardless of brain damage low  all the kinds of evidence that i've discussed here today that not only you know words that the trial counsel limited to limit himself essentially to four minutes worth of actually mitigating evidence none of these things was touched on and all the jury heard nothing about family vio they heard nothing about a family history of alcoholism they heard nothing about the possible impact of that on them they didn't even know he's lived in compton they didn't know about poverty or gangs they're around him they heard nothing whatsoever about the climate of extreme