please the court my name is john williams and i am here on behalf of justin andersen this morning i would like to focus on two claims in our brief the st concerns whether mr anderson received constitutionally effective assistance of coun under wiggins versus neath a capital defense attorney must conduct a thorough investigation into mitigating evidence or must have a reasonable basis for not doing so here counsel didn't look into brain damage related to fetal alcohol exposure that omission was unreasonable given what counsel knew at the time especially in light of reports they had of the mothers drinking evidence of fetal alcohol exposure and brain damage related to it which is uncontested in this proceeding would have changed the sentencing profile considerably and would have added weighty mitigation the nd claim from the brief that i would like to discuss arises from the trial court's middle liberations jury instruction instead of telling the jury to waive a single statutory aggravating circumstance the state of charged the trial court told the jury to also weigh the circumstances of the offense which is not a valid aggravating circumstance under state law this instruction place thumb on death side of the scales and created constitutional error under brown vs sanders now i'd like to begin with the ineffective assistance of counsel claim and the performance portion of that claim as in any ineffective assistance of counsel analysis of the court must eliminate hindsight and try to place itself in counsel's position at the time of the trial so with that in mind what did counsel know going into the re sentencing in two thousand and five remember that mr anderson had been tried the since have been reversed and the attorneys had the opportunity to have a nd bite at the apple so they knew that justin had obvious cognitive problems and they knew this for a couple of reasons st of all they had a basic inability to communicate with him latrice gray at the hague his hearing testified that they had an inability to communicate with him throughout the st trial and the nd trial they had school records they knew that as a seventeen year old he was unable to get past the night grade and most kids are graduating high school when they knew that intellectual disability could not explain his cognitive limitations and why did they know that they knew that because they had a couple of different i q tests that told them that his i q while low was elevated and not sufficient to establish intellectual disability or mental retardation is that condition was called at the time they had their own expert dr mani pedi who tested him with an eighty one i q they had a state expert who had tested him with a ninety one with this evidence they had gone into the st trial and asked the judge to find him intellectually this of disabled the judge said he's not intellectually disabled they had asked the jury to find him intellectually disabled the jury said he's not intellectually disabled  t when preparing for the recent insane they focused exclusively on intellectual disability and i think the most important piece of data they had was that justin's mother was drinking around the time  letters what that said it's a note from the investigator it's an interview with susie anderson who's justin's grandmother and she said that when gerry and ruby got together that's justin's father and justin's mother that they were both they were both drinking and it was around the time that this case is different from williams in the th circuit in that case as i recall there was evidence in the record drinking during pregnancy my recollection there there was there was evidence of about the same quality i would suggest as we have in this case as far as the timing goes it was at the scene i cannot recall the precise timing but the mother they either didn't ask the mother as was the case here or she denied it and they ask the father and i believe a sister but they did they had sketchy details on the details were not they did not tell the attorneys in my recollection that i saw her drinking while she was three months pregnant they said that she was drinking around the time and that's what was the case here with this memo that around the time of pregnancy she was drinking but that was all i want i want to get back to just sort of and i'll just a logical question which is here you have i think you the defense consulted between five and ten experts i realized only two of them gave reports there were mental health experts the that you know both consulted with and and filed reports none of them suggested fetal alcohol syndrome or partial fetal alcohol syndrome and i just wonder whether you're required or you're asking too much from attorneys too to make a diagnosis that mental birds have not so in order to make the diagnosis the mental health experts need  sufficient information and one key piece of information that any expert would take into account was that the mother drank while she was pregnant and that's not the only evidence of drinking those drinking throughout his childhood but the defense attorneys never told these experts that he was drinking and that is a key signal to the expert that fetal alcohol because it but didn't he he met with a lot with all almost all the mental health experts and he i mean presumably i mean he did suffer from and you know low in an intellectual capacity but presumably he was given the same information the mental health experts that he was giving to his own lawyers was and he was discussing his history of abuse primarily i mean the let's face the single best fact for the state in the case the best fact for the state in the case is that dr speck  came to the prison a month before the recent scene and looked at him and said he doesn't look obviously brain damaged to me you know i have some test i could give for that you may not want that he doesn't want obviously brain damaged but she didn't have the information about his mother's drinking and counsel who controls the case didn't have her do the test that she would need to do to tell whether there would be fetal alcohol exposure brain damage wasn't there significant evidence of brain damage and the jury didn't hear about all the results of fetal alcohol syndrome or for the jury in terms of his disability or what difference does it wasn't this label fetal alcohol syndrome attached i'm not sure that it would matter if there wasn't this label but i would dispute the premise i don't think the evidence was put before the jury because of that was my st question my st question was was all the the cognitive disabilities put before your no it was not i mean the mitigating case here was about his abuse it was about the abuse he suffered as a child from a stepfather from his father neglect but there was no evidence of brain damage dr spect her and the mental health expert at the recent saying that i'm basically here to look at him as a young person to kind of explain you know who he is but he said i didn't do a forensic evaluation i mean a mental health expert who had indications that he may have been the bed his mother may have dragged would have done that sort of forensic out of evaluation a thirty minute test the wisconsin cards or in test which they discussed extensively with counsel in january two thousand and five february two thousand and five now my understanding is to follow up on judge grounders question is there  several things that the jury was explicitly told about during the mitigating case for instance is low i q you mentioned his struggles in school that was presented and evidence of mental disorders and so i get back to sort of judge grettir's question if those specific things were put before the jury how much of a difference would it have made to say you know lock all syndrome too because he presented i think what thirty some mitigating factors or forty many getting factors he presented thirty min to get in fact he presented thirty five the jury found thirty  which boiled down to essentially one factor he was abused the jury didn't find that he had an emotional disturbance at the time i believe they didn't even find that his low i q was mitigated i mean people with fetal alcohol spectrum disorder they have regular ice cubes are they can have average i q a ninety one i q is not inconsistent with the sort of brain damage and so it's sort of masking the problems that the person has because they appear to be normal on i q testing i have significant brain damage that wasn't presented in this case that's the difference i think the the attorneys presented the abuse they presented he performed poorly in school ok a lot of people do he had a low i q not clear from the record is that the defense counsel made certain strategic decisions because you know the team was worried about disclosure under the arkansas rules that you'd have to disclose some of this to the prosecution and in fact some tasks had been done that they had to turn over at some point or didn't write reports about because of the risk of bad and it turned over so could there have been a strategic reason for why even though it may have looked bad in hindsight not right in hindsight could there have been a strategic reason here for this decision i disagree that there was a strategic reason and i think this is a this is a mistake in the district court's opinion wigan's tells us not to create a post hoc rationalization that is not supported by the record so which was great didn't testify that she had a strategic reason for non disclosure because she was afraid of bad evidence and if we if we examine that a little bit there's not really any harm that would have been done from a from a test so they had no  intellectual disability evidence they had they had depression but testing him and then finding no brain damage would not have harmed the case and in fact the prosecutor was able to get up in closing arguments and say there's nothing wrong with you know they presented dr spector who said case but i would distinguish that case because in force versus still they at least had some evidence of brain damage of neck of inability to function may and here there was simply nothing and so it's not supported by the he may have some brain damage who got these neuro psych a logical test and they didn't do the investigation so before formulating any strategy in this again comes from wigan's you have to do an adequate investigation and i would submit that this was not an adequate an investigation into a very important component of the case if there are no further questions about her forward before you move on i'm just i'm trying to figure out exactly what the nature of the claim is here because you're saying and it gets back to the question i asked about about the expert and what the experts knew on one hand you're saying there wasn't an adequate investigation and i think that's your primary claim but you're also saying that the council should have let the experts know that the mother was drinking and so are you alleging that they knew it and didn't tell the experts are you alleging that they didn't know it and should have investigated it which are two very different claims i'm alleging that they knew it and didn't tell the expert or at least they had enough enough information to investigate further here's what happened we go back to the memo of a one that and other evidence of her drinking they didn't go and ask mom whether she drank right that's something they should have done right but they had enough information to get there and they should have gotten there and then they goes to prejudice you know as as i've mentioned the courts including the supreme court have recognized the importance of this evidence in a mitigation profile and williams versus sterling is one i think and so having not done the investigation the jury didn't hear about this evidence and it was it was prejudicial i know you can't count numbers when you're talking about aggravating versus mitigating believe established the jury found thirty there were nearly forty presented  as i recall there was one aggravating factor although we're going to get your argument about the fact there might have been the sort of catch all factor and well with over thirty with thirty found many you know many argue would have adding one or two or three more made a difference is a matter of prejudice analysis it depends on what it is and and this case it would have been a very significant case of brain damage if you look at the mitigators look at the jury foreman see what they are  so at appendix t for the one of them says amos fused his stepfather physically abuse just the next one says amos was convicted for abusing just and that really adds nothing i mean this is why we don't care about the quantum of the evidence and prejudice analysis why we and be brain damaged because their mother drank when they were bringing so i do want to go ahead and talk about this aggravating factor argument that and that arises under brown versus sanders so of the state court at st properly instructed the jury about what they were supposed to do they're supposed to weigh the single aggravating factor the prior violent felony against the mitigating evidence that they found but then the jury came back with a question and they ask what do we weigh and it's clear at this point that gets at the consideration of evidence and i'm drawing a distinction between consideration of evidence and determine deciding for example whether mitigating factor exist whether an aggravating factor exists you don't have to reintroduce evidence that was her earlier to get into action so ration imply that  can consider the facts of the if it's it's they cannot weigh the facts of the offense and arkansas state law has been clear that that statute did not create another aggravating factor arkansas decided to limit its aggravating factors to ten very narrow factors and that is now i mean that that because of the the new statute that you can as a jury weigh all that evidence it can come into into the deliberations you could come into the proceeding but when it gets on constitutional grounds you're arguing here that there was a sentencing error based on arkansas statutes my understand your recollection of brown is those were constitutional issues that force factors to be invalidated and i may be misreading the case but if it goes to the question of whether the factor was invalid i don't think it matters why the factor was invalid and i think i conceded too much in my reply brief honestly on brown which i look back at brown at least one of the invalid factors was invalid under california murder law that state law so it doesn't really matter why the factor isn't valid it goes to the question of whether the jury weighed as aggravation evidence that should not have been no it does not mean i think it has to be an invalid and that's what brown says and i don't think again brown says does not say that it has to be invalid because it's unconstitutionally they will does brown say it invalid because of state law brown just says there were invalid aggravating circumstances in this case were they based on state law one of them was which was the one about burglary that had to do with state murder law and again i didn't put the i didn't i'd honestly did not look at brown closely enough when i look in reply brief but if you look closely at brown you'll see that one of them was under state law but that is really the the reason that it was invalidated is not important the question is whether the jury weighed evidence in aggravation that for whatever reason should not have been weighed in favor of death and then the question becomes whether they could have considered the same the same way the same evidence under a valid aggravating factor in the case and in this case there was only one aggravating factor so yeah i can see where consideration of race would be unconstitutional and that would never be allowed but consideration of the underlying facts of the very climate issue doesn't strike me as something  setting how they're going to handle sentencing cases and capital cases and you're suggesting once they do that that transforms a violation of the state statutory structure into a constitutional issue remind misstating your well i certainly agree that states have constitutional latitude to establish a system under the th amendment within a broad range but once the state has determined that there has to be limited aggravating factors the consideration of factors outside of that range skews the death consideration someone who was in mr anderson's position who had one aggravating factor and who had not received this sort of instruction would have had a very much more narrow consideration much more  realize that administrative panel this court expanded the certificate of appeal ability on this issue but i can't find a single reference in the state briefs to this particular theory i threw a lot in there about victim impact evidence and the timing but nothing about this instructional air and the improper away and so i guess the question then becomes isn't it procedurally defaulted thank you for asking that that's important i believe it is adequately stated in the brief the in both briefs really but so i'll quote from the the opening brief the heading to the argument states an alternative argument and it says that the court erred by instructing the jury to consider all evidence presented as aggravating circumstances to be weighed against the mitigat that's the argument we're stating and then toward the end of the brief appendix you thirty it argued that weight of an invalid aggravating circumstance violates the th amendment that cited cases like stringer but is there any is there any subset of argument actually i take that back that was the one that i saw was the heading but i didn't see any substantive argument i didn't see the citation of cases i didn't see me to really just to sort of like an afterthought in the brief yeah we're going to stand up we're not going to argue it which i don't know if that's enough under to preserve it i think there were two dollars to three dollars pages in the brief where  forty two that says the claims must be closely related or and have arguable factual commonality and i think that is the case here there's sufficient information for the court to have would want to make sure that the state court had an adequate adequate notice that this was a claim and and if i were i guess my concern is if i were the state court i'm not sure sure i would treat this as a separate claim i'm not so sure that i would have known that i needed to decide that particular claim because of course they didn't decide the claim you're now alleging they didn't decide the crim claims were procedurally defaulted and without merit counsel was not ineffective for failing to investigate partial fetal alcohol syndrome p t s d and youth brain nor was counsel ineffective for introducing report stating that anderson was on death row the jury's consideration of the circumstance of the murder for sentencing purposes were not unconstitutional and then finally the tools were available at the time of anderson's appeal in two thousand and six to argue that he was exempt from the death penalty because of you and then with regard to his claims of of in effect the system counsel for him you know failing to investigate partial feel alcohol syndrome p t s the brain counsels performance on those issues it was not there was no deficient forms so strickland says that the federal constitution imposes one general requirement concerning counts performance and that's that's that's if they make objective only reasonable choices council has a duty to make a reasonable that there were problems here that he had some mental and cognitive difficulties but i think the argument is as they never tracked it down they never figured out why that was which could have led to the presentation of additional mitigating evidence to show that there was a reason why he might not have had the capacity that he should have and so wasn't that a failure objective leon reasonable to know that there were problems and then not to investigate why those problems existed well so so with regard t counsel's investigation what we have they did extensive investigation they had and they had their team involved in mitigation specialist investigators and so they went out in the community they talked with all of anderson's family members they got to school records they got juvenile used instead it suggested simply that counsel retain and i'm quoting from the guidelines here a person qualified by experience and training to screen for mental or psychological disorders of the facts and recommend such further investigation of the subject this may seem appropriate so that was what counsel is required to do and they they did that here they took this extensive investigation it did their investigation included the evidence from you know dr spect her and they gave it and they they did they had him seen by five different experts and they you know once when i talk with dr caperton she said well there's no intellectual disability here so she said you might look at some neuropsychological testing and so they turned a doctor spec current for this and  they they gave her all of if you look at the engagement letter with her they gave her all of the judge marshall found it in his opinion to she had at the end she testified i had lots of records lots of evidence and that included evidence from the st trial testimony and in that st trial there were witnesses that said you know i think that they they said ruby drank she was a drinker not that never any specific evidence that she drank while she was pregnant but their expert had that information and dr speckhard testified she said they told me about that they were having trouble communicating with him and they just wanted to know they were still looking for any kind of mental defect and in dr speck kern said i went to the prison with a couple of test neuro psych test in hand and i was prepared to give in to them but she said after talking with them for a while she said i didn't detect any evidence of major brain damage from all of them and she's like this problem just seem emotional and that's what she went back in told told counsel didn't she at some point  recommend that he be given this wisconsin card shorting test and problem she said with regard to that she said after she this is after she interviewed anderson and i think this is this really goes in what council's decision to pivot away from that and she says she said i don't see any any evidence of this and she said i could give him these things to rule it out but she said it's not based on anything that i think is there but she said it was only be to rule it out and she said and she wore them she said whoa she said that might get into what more than what you want presented and counsel they were very aware of and i think you see it in their e mails they were being cagey about what they might have to present to you know it might have to turn over to the state and so when she said i don't think it's there we could do tests and just they they had pivoted away from that and  so that wasn't based on what their expert told them that was an objective lee reasonable decision in that council is not required to track down you know the th amendment doesn't require counsel to track down every possible and rule out every possible mitigating the fans just that they make a reasonable investigation or that they decide that further investigation is not necessary after talking with their expert let me ask them the district  reliance on rule eighteen point two disclosure courts wasn't that a little miss policed it didn't the trial court here say that it was only going to require a porch to be turned over of the actual testifying and then have them do testing and maybe have to dump that expert you know because the expert didn't give them what they wanted you know they counsel told him or the expert their expert told them that you know i don't i don't see anything here but there was it was i think in the st in the st trial they had a head on turn over you know any sort of any experts that might testify and they anticipated dr specter and testified well i was confused a little bit just to follow up on the arkansas the w arkansas practice works on this because as i recall judge carter's exactly right about the nature of the order but i think at the end of that order the trial court also sad that that it was being left open for modification so there is a possibility that more could be disclose generally and particularly in death cases do they require the disclosure of all documents or only for testifying witnesses i'm not familiar enough to say whether they do but they are they would they'd seen these experts and they didn't they were going to have heard do a test that she believed was unnecessary or that would you know simply rule out something she didn't believe was there because they didn't she was going to testify a form she was she was their expert and you know that's their decision to make and they didn't want to have to possibly dump her as an expert if the test did come back and something they didn't want and so counsel's performance here it wasn't deficient there were no signs that anderson's mother drank alcohol while she was pregnant and this is all distinguishable from the williams case where there were you know witnesses that said oh yeah mom drink while she was pregnant and also you had the experts saying there's brain damage here and maybe we'd like to look into the circumference of the you know you your hospital records and counsel just ignoring that we don't have any of that here and they gave all that and the evidence the counsel had they gave their expert in their expert didn't recommend you know she's a train neuro psychologist and kerns advice and we're not in fact doing so with regard to prejudice you know the question is whether or not it you know if counsel was ineffective whether or not that undermines confidence in the outcome of the proceed whether there's a reasonable probability that had the jury had the evidence put on it they have an interest hearing that you know the outcome of the case would been different but here we have dr speck hern what the evidence that she put on at the end we kind of glossed over this i heard that you know she only talked about his his bad childhood but that wasn't she couple this bad childhood with she talked about his you know his youth brain and call it youth brain when she talked about how she took all the evidence of his bad childhood and then she said also at the time she said his frontal lobe was underdeveloped because of his youth like everyone until you're twenty five the the judgment portion of your brain is not formed and and she said that coupled with his bad childhood it left him acting impulsively when he committed the murder he acted impulsively and he was you know acted on thinking only and that's how she connected up and that's how she explained it in then she went on to say but now that he's in prison he's all of his needs are being met she literally invoked metals our human needs and she said he's he's doing fine now and then counsel parlayed that in the closing argument to say he deserves mercy he made a really bad choice and he deserves he deserves mercy is not the kind of person that we put to death he salvagable he's not going to commit any more crimes in prison he's you know and counsel wasn't required the evidence of p t s d in f a this the would have cut against that it would have cut against that theory of the case because with the youth brain you know once he turns twenty five his you know he can make good judgments but if you put on evidence of p t s d u f a s the he's permanently damaged those things don't go away and if you say will he has this permanent brain damage that you know is linked with him committing this crime it may have left the that would have that would have cut against there he was worthy of merc it would have maybe led the jury to think you know we can't we can't trust that he's not going to kill him you know and i'm taking you back a little bit off the prejudice problem here but isn't the standard in wigan's that counsel may be able to make those decisions but she needs to be aware for she makes the decisions and what the facts are and that's why the investigation and fetal alcohol syndrome is so important because i think the st circuit is observed you know it goes to and it's in that sense brain damage is unique or it's different at least from some of the arguments that counsel presented and it sounds like she wasn't aware that she had the option of going in so she may have chosen a reasonable you know story the case theory of the case but she wasn't aware of the brain damage that was out there that she could have then made that judgment  she was she was again she wasn't required just to be able to screen for you know feel alcohol syndrome and so that she took all the evidence that she had in this they've done in their big sense of investigation gave it to their expert in their expert didn't see any any evidence a brain damage and and comparing you know now it's a at the federal evidentiary hearing you know what they're saying should have been presented to the jury would have made the difference is evidence of partial fetal alcohol syndrome and at the evidence  the feel out of all experts said well yes or it wouldn't excuse the crime but it would have shown how his has thinking was influenced at the time that he committed the crime and that's really no more than dr speck current saying because of his youth brain he caused him to act impulsively so there's no on that evidence the evidence that you know it would have been one more mitigator and not not an excuse for a crime and so again with a lack of empathy and dr spector and testified that all those things that he's of all those things as well to the jury and with regard to ukraine again counsel did put on evidence the best that was is you know indeterminate sense and just rely on what that previous jury done but from that single sentence it's impossible to determine what the jury might have inferred from that statement it didn't they would have been pertain to the jury's role in sentencing they were affirmatively misled or told about that particular sentence like the juries in caldwell or in boarding cards or and i think that rimando be oklahoma i think that case is struck of here and and as anderson points out it's not a six mimic case but the analysis in their mano cases they take you know mere evidence that he you know the definitive previously been sentenced to death  and they say and so where it's instructive here is that it they said that that didn't undermine confidence in the outcome of the trial and so here you know that  and we see that the jury didn't just in that instance the jury didn't just wrote they rely on what the previous jury might or might have done they were in there they were weighing the they were doing what they were supposed to do is jurors what they've been instructed to do they were looking at finding an aggravator they aggravator they looked at the mitigators and found you know thirty mitigators and then they weighed the you know made an individual determination on anderson sentence based on all of that and so they didn't just rely on i think i think that's where you can see what the jury how the might know that that means he's already been tried and convicted some five folks may not know that some may think that hey he's being kept on death row because that's what they do with people who are up for capital murder waiting trial yeah and so when i say it's impossible to know what they determine from that that you know that's my st line already there and certainly you can't go as far as saying well that that caused them to you know shirk their duty is yours so that brings us to our rd point he argued the jury wrong was wrongfully allowed to consider victim impact evidence is aggravation but and that's what do you argued at in his opening brief and then and that's what the arkansas supreme court determined and that is a different argument th whether the circumstance of the offense were considered by the jury as a non statutory aggravator that was that argument was never presented to the court and to the extent that he might have you know gotten close to it in his reply brief you can't raise arguments for the st time and  why the arkansas supreme you know to the extent that it so is procedurally defaulted and to the extent that you can merge those two claims the victim victim impact evidence is the same thing as considering the circumstances of the crime and then that decision  entitle to the arkansas supreme court's own adjudication of that is entitled to deference and you don't think that the heading in and so i guess that you'd say the reply brief wasn't good enough but the heading and some of the other references he made that's not good enough to know because they focused on didn't consider you know whether the circumstances of the you know the crime were an anon statutory aggravator but to the extent that they that you can merge those two arguments the arkansas supreme and the arkansas supr the arkansas supreme court's decision was not contrary to our known reasonable application of you know any established supreme court precedent and he talks about he talks about brown the considered the state they considered his criminal record in the tourney and that was the non statutory aggravator and ultimately the court in barkley said that's it that's an error it's a it's an error of state court law and mirrors a state court law don't concern us here and so whether we're weighing state or whether this jury instruction inadvertently turned us into a non waiting state in this instance neither one of those i mean there can be ways saved there can be non ways states they're not unconstitutional and his consideration the jury's consideration of there's nothing unconstitutional about the jury's consideration of the circumstances of the crime for that when that's what they're there to decide what's a sin in determining a sentence so there wasn't anything unconstitutional about a if the jury if if they did consider that as an aggravator because there was no where there was nowhere else in the form for him to consider it and the statute allowed as you pointed out it's grown or that it said you know aggravators mitigators and all matters relevant to punishment and so it wasn't wrong for them to consider the circumstance a crime was and it certainly wasn't it was wrong in arkansas state law and it certainly was wrong in the united states constitution and then his final point is that he should be categorically exempt from the death penalty because of his age in because of his alleged mental deficiencies and again this is procedurally defaulted never raised it but he says that well that those claims arguments are so novel that that should excuse the pursuit their procedural the fault but the test of that this court set out is is one of the tools available to his counsel at the time to make those arguments that he was categorically exempt from the death penalty age and they were those tools at the time of his his state appeal in two thousand and six those tools existed you had cases of eighteen and and in the roper decision the court said the qualities that distinguish juveniles from adults do not disappear when an individual turns eighteen and so they could have made that argument it doesn't disappear when you turn one thousand either at the time of his in two thousand and six and then with regard to his mental illness those same types of those tools to construct those arguments exist at the time you had ford be wainright in one thousand nine hundred and six where it said the supreme court announced you can't be put to death if you thank you just to respond briefly to a few of the points that mr jones made st of all he mentioned the guidelines and what was professionally response reasonable at that time and i have to correct them the fetal alcohol exposure was mentioned in attorneys have been looking at fetal alcohol exposure as early as one thousand nine hundred and five that's miller which is cited in our brief dr speck kern again i mention this in the opening but you know all this information that he said about i don't think he's brain damaged that was given in july two thousand and five the month before trial which is the st time that the attorneys actually said why don't you go talk to him you know she was telling him in january february before the export export disclosure deadline that testing is warranted and they didn't do it and they adequately formed a strategy and done done the investigation they could have formed a strategy that would have kept out any harmful information although again i would dispute that just doing a test like this would not have been harmful even if it were returned positive information because they didn't have any negative immigration to undercut the question of prejudice it doesn't simply go to effects on the crime although that is very important but it also goes to his moral culpability because tells the jury about who he is and he was he was nineteen at the time of the offense but the f a s d made him more like a younger child and that reduces his moral culpability and we there's no categorical exception for people with f a s t but these people are like the sort of juveniles that aren't exits going to the brown versus sanders argument mr jones mentioned barclay and this goes to the state law question judge grounder had i think that's  that's important of like an opportunity to clarify that case as well as the answer to your question so the supreme court talked about barclay and stringer versus black and this is a quote from page thirty one  characterizing what the supreme court did it more clearly it said in barclay the sentencing judge relied on an aggravating factor that was not a legitimate one under state law we have firmed the sentence but only because it was clear that the forest florida supreme court had determined that the sentence would have been the same at the sentencing judge given no weight to the invalid factor now that was done on the former analysis that was done for wayne states that the supreme court of the state would really weigh the evidence and determine whether there was error there now that's out the window you do a brown analysis and the question is could the jury have weighed the evidence that supported the invalid aggravating circumstance under some other valid aggravating circumstance here there was only one aggravating circumstance the prior violent felony it didn't relate to the circumstances of the and if the jury could not have weighed this aggravating evidence under a valid aggravating factor and they couldn't have here then there is constitutional error that requires a reversal so if there are no further questions i would request that the court reverse the district court and grant the