the areas identified in both sort of compound one another and when you analyze them together you see that the jury was really deprived of an accurate reliable picture of the available mitigation in this case so i want to highlight two differences the deficient performance prong in both san diego case because i think that for the most part the prejudiced analysis is going to be very similar the first thing that's different about the deficient performance here is to recognize that the san diego lawyers had the unique benefit of watching their penalty phase strategy play out in front of a jury they were actually at the los angeles trial and they saw how the jury reacted to the mitigation and they saw the jury reject that mitigation and sentence  to death and yet two years later they go to san diego and they replicate that same strategy apparently hoping for a different result and they didn't get a different result they got the same thing a death sentence for their client the other thing that's really really remarkable about their  their investigation that they didn't just have the benefit of watching this tragedy play out they had the luxury of additional time they had been on the case since the mid eighty's as well carter's los angeles trial happened in one nine hundred eighty nine the san diego trial happened in one thousand nine hundred one so they had two additional years to investigate their case and they saw their strategy fail and they didn't supplement it with mental health evidence even though they knew that they should and in fact they started conducting the most critical part of that investigation at the eleventh hour six days before the penalty phase began they had a pet scan conducted on carter and that pet scan shows concrete proof of the fused brain damage that's affecting all different parts of his brain including this is very important the corpus callosum the  corpus callosum when you see damage to the corpus callosum that's usually a very strong indicator that someone has suffered from fetal alcohol syndrome but that brain scan also show the frontal lobe damage which i discussed in the last appeal but they waited too long to get that scan administered and because of that they couldn't get their expert lined up in time the first time that they had this teleconference with their expert was one of the penalty phase was already underway as a consequence of that they weren't able to get their expert in court in order to testify that was one year before carter's los angeles trial three years before his san diego at trial so while it was still an evolving fill it was still evidence that could have been admitted and should have been admitted the second thing there is the spect of anti social personality disorder as dr brown explains in her declaration any prior s p d and ice are social personality disorder diagnosis would have been easily refuted at the time of trial because s p d is supposed to explain a continuum of behavior and in this case all it does explain really isolated instances of its behavior also the d s m says a s p d is only a proper diagnosis if a person's behavior cannot be explained by a general medical condition and one of those general medical conditions is fetal alcohol syndrome so a properly prepared expert would have been able to cast great doubt if not completely undermine any prior s p d diagnoses that's why even though trial counsel said during the teleconference interview that they were worried about opening the door to additional aggravating evidence presumably the s p d diagnosis that was an unreasonable strategy because if they had a proper expert lined up that expert could have undermined those diagnoses there were lots of red flags about fetal alcohol syndrome the first red flag is the fact that they learned counsel learned that the parents were chronic alcoholics when carter was a child in a place that is known for its alcoholism nome alaska and then you know just a few years before the trial began united states surgeon journal says united states surgeon general had declared fetal alcohol syndrome to be a national emergency you know this should have been on their radar and then again if they had gotten the pet scan they would have been able to consult with an expert who would have said look there's a defect in the corpus callosum and that indicates fetal alcohol syndrome so we should investigate that turning now to the child abuse evidence so i don't think it's correct to say that there were car home and seeing the boys chained to a table and drinking water so it's hearsay we acknowledge it but the supreme court has said and sears versus upton and chambers versus mississippi that you can't rigidly apply evidentiary rules at the penalty phase a single incident of the chaining your honor so there was some evidence that the san diego case that his parents were abusive in the sense that they would beat their children or they would fight with one another but there's only one single incident of carter being chained to a bed and it was painted again it was painted as discipline because it was carter who was the problem not his parents but there is a i think a constitutionally significant difference between a jury learning about single incident that's painted as discipline and learning that chaining is occurring widespread and widespread in chronic manner you know again this is carter being chained to tables to beds to cabin post in gnome at his summer cabin and osborn people see him dancing around playing with the other kids shackled at the ankles or handcuffed that's very different picture than the one that was painted at the trial and just like the los angeles prosecutor the stand a good prosecutor point of this out and said i think let me see i think he said something like i have the word discipline pointed out there they're put up here on a board there's no evidence of abuse here but there was evidence of abuse that could have been discovered had they followed up the lead on the relevant leads and again the best cases for this your honour's  deprived childhood presented some evidence of it but what this court said is that if you look at what could have been discovered it indicated that further investigation would have yielded more in mitigation investigation and it triggered a duty to dig deeper that a judge may not prevent a jury from considering any aspect of the defendant's character or record that the defendant proffers as a basis for less than death and here the judge did just that and excluded three pieces of mitigation evidence the first was gerry said testimony about the extreme measures that carter took to try to escape is to mulch or his home life hardly sneak on to planes that were leaving nome alaska and going to anchorage five hundred miles away lack of personal knowledge your honor yes so jerry did not personally observe it carter would tell him when he came back from one of these these escape attempts that he had tried to sneak aboard a plane but he didn't personally see it but you had the entire town a known that was out and about trying to find carter because he had escaped or had run off but that is i mean the that he would admit the evidence about the about the airplane what was that you could you could admit the evidence that he was gone and nobody knew where he was that does doesn't mean that you have to admit the evidence about sneaking into a wheel well the t judge in san diego did excluded that exact evidence your honor but again super stood up and says that even when you have you know mitigation evidence that's based on hearsay it doesn't just get excluded right out you have to evidence that we're going to would be excluded under you know evidence or a rules you look to see what there was relevant to a critical issue here it's his life at stake i think that's pretty easily met and the mitigating evidence has a point to lose and we lose the regular rules of admissibility know we're looking to see whether there's sufficient reliability and what the supreme court hasn't really done is explained what it means for something to be sufficiently well i will and then how do we know that california was wrong if the supreme court has an adequately explained this right well so i'm really struggling here counsel because you've got you've got admitted hearsay and the trial court admitted some of it didn't admit all of it because part of it was was hearsay those seem to be just  regular rules by which we could duck trials and so i thought i would be i thought i would be very interested knowing in what is the supreme court authority clearly established that should have told california that it was dead wrong on excluding hearsay and so i would just say that chambers and greens it has to be sufficiently reliable well that doesn't it but that does that say that you have to admit hearsay it is not ok and then how would california know that the supreme court had clearly established that principle well the california supreme court knew that the rules were supposed to be relax claim not all of it's reviewed on under twenty four d because the california supreme court didn't adjudicate whether there was error here actually said it was a really close call but just want to prejudice we can get to prejudice in a little bit and i forgot to mention the beginning i would like to reserve about four minutes  that carter's stepfather jim was a racist and he was had a had a deep seated hatred towards native alaskans like carter and the judge didn't allow that to be introduced and that would have added a very different dimension to the mitigation evidence because it would have shown that jim carter's abusive partner was targeted because of who carter was not because of what he did because of an immutable characteristic in our society views that kind of abuse very differently than it views abuse that doesn't have that component so what supreme court decision required admission of this testimony well eddings and lockett are the one that say that dr alon a doctor bundle on her testimony should have come in because it was relevant to a aspect of the defense character record it was relevant to his character because it showed that the abuse that he suffered as a child abuse that he suffered as a child was racially motivated but if this trial court it it was not relevant how do we know that the supreme court would say that's contrary to its ruling as then just to be clear with about excluding the evidence was contrary to or involved an unreasonable application of clearly steps federal law i hope is that clear i understand your argument but i thought it was six quality that are relevant grounds right the trial court excluded on relevant ground court decision on this issue yet the california supreme court said that we are not going to decide whether was properly excluded but we acknowledge it was a closer question but we just think that we can deny this because of lack of prejudice so the only address the harmless question of prejudice i think that's i think that is right o'connor all right so there's really no no reason to argue about well you and i were discussing hearsay but that was jerry yeah that's just jerry ok so when you move to the prejudice question so the prejudice component so i've talked about the working with jim carter and how he was a racist towards native alaskans like carter the expert testimony would have bridged the cultural gap between carter a native alaskan who grew up in a place unlike any other place in the united states i want to know about that i want to know about the lack of prejudice i want to know about the prejudice prong with respect to the racism of the late tell a lot of lay testimony yes exactly so i as i said earlier it would just add a different dimension and probably would have made that rez that mitigation evidence resonate in a really deep deeper and different way because it was racially motivated and it showed that carter was being targeted because of who he was and not what he did as for the expert testimony and what she could have done is explain how native alaskans like carter grow up in this place that is unique and unlike any other place in the united states where alcoholism is a deep seated problem how the children that grow up there are just experiencing what she called widespread despair and how people like you who are part of alaska native and outlasting and part white found sanctuary in no community because they were cast off by the white community and cast off by the native alaskan community and she could have explained the ramifications of all of this on carter psychosocial development and again also would have been able to bridge the cultural gap which is a consideration this court has emphasized in cases like vs blodgett and syrah punks versus c attorney general on behalf of the people may please the court dean carter here in the san diego trial had the benefit of watching the l a trial his attorney one of the attorneys was there throughout the whole proceedings and was able to evaluate that witness credibility they had numerous investigators and an investigation spanning four years they interviewed expert witnesses lay witnesses including family members friends co workers institutional counselors and townspeople in rome and he still argues it's not enough his attorneys made the same representations made the same decisions regarding how to represent him in the los angeles not sandra's trial because they had the same witnesses and same mitigating evidence and that shows not that the san diego county were deficient but it shows that for attorneys making the decision came up with the same strategy because there was only one story he had to tell and the best way to tell it was the way they opted to present it for tactical reasons even though the los angeles jury rejected it it wasn't because of defense counsel's failings it was because the mitigation evidence just whatever dean carter had was not sufficient to overcome the egregious and sophisticated and callous crimes he committed the counsel argues that they should have they had two more years after the l a trial they should have investigated more about his mental impairments well in the san diego they did they got a pet scan and they made a decision after consultation consulting with experts not to present that testimony i thought opposing counsel said it was a matter of the defense counsel not getting the expert prepared in time that's not consistent with the record the defense counsel at trial stated over a span of many pages in the record numerous times i am making a tactical decision i do not want to state it based on i do not want to state what a tactical decision is on the record but i am making a tactical decision that i do not want to present that testimony to the trial judge stated based on things i know that are not in the record i agree with that strategy what we also know is so so why why you live with this longer than i have and i've struggled with that one what was the basis for the tactical decision there number of reasons one is that there were we do have some reports that were that are in the record that we're aware of that describe carter as a classic sociopath personality we also know that there were different in this case we have more information about who evaluated the defendant he had a number of mental and medical health experts evaluate him prior to trial including dr burke is a psychologist dr cal all dr starter to psychiatry us  abner and meredith friedman so there were a number of expert witnesses who had evaluated him and defense counsel had the benefit of those reports we also the prosecutor also stated that had they presented this evidence the prosecutor would have been able to use their own expert witness to evaluate carter and present similar evidence so given that the defense counsel hout all that information spoke with dr who did the pet scan for a period for a period with where the judge the prosecutor never and also left clearly it was a tactical decision this is not a case about a lack of investigation and mental impairments this is a case where there was a significant amount so they will use of this particular element i mean that i think they were into the penalty phase when the pet scan was taken and they had to track down at the end that the judge seems to confirm his sense that the tactical decision is an appropriate one and i've kind of struggled to figure out ok so looking good idea at the time  but why if they just got the the brain damage testimony and or information a few days before what's the downside of trying to proceed further down that path a reasonable inference is the downside was that they had all these other medical reports and mental health reports that were not favorable to carter that they would have had to turn over and they would have had to  the prosecutor would have been able to use to their advantage given that the there was a lot of information known to defense counsel and defense counsel stated it was tactical that's the re we don't have the benefit of what those reports are but we don't need them what we know is that defense counsel after a thorough investigation made a tactical decision not to present that testimony and the court stated that she agreed with that that it was based on things that were known to her that was a reasonable decision so and a tactical decision so based on the record there is nothing in the defense counsel specifically stating that's a tactical decision some reasonable inferences about why it's a tactical decision clearly the california supreme court was reasonable and a charming there was not deficient performance regarding me evidence of cheney and i want to touch on that since counsel mention that of the witnesses that defense counsel was talking about that would have testified about the cheney many of them had never seen it these again are all rumors of what they had heard so he mentioned robert sherman there was no declaration for mobbers sherman that he had witnessed the chain there were some witnesses that stated they had seen him chain and if they all were at the johnson's house in the summer at a party and saw it sort of peers it was the same incident otherwise the only other time is what jerry actually testified about and what what was presented there was evidence presented that dean carter was sha and gerry explained that cheney but the fact that there might have been one more time and cheney doesn't and that defense counsel didn't present that doesn't result in a determination that counsel sufficient it should also be known that one of the people who testified or they had a declaration about that of the changing event was cheryl stablished and she was interviewed before trial so a reason why inference is that they knew about that additional event they had discovered that witnesses and decided not to present more evidence of that for tactical reasons what would be the tactical reason for not presenting more evidence  perhaps it was because they didn't want to focus too much on the abuse or they made a determination that she wasn't as credible that particular witness was there's a lot of in for a lot is rely post conviction on that witness well that witness was polly reasoners best friend or good friend she was probably reserves age polly was eight years old when carter was or carter was eight years old when polly was born and carter left when he was nine years old and polly's stated polly testified polly was interviewed paula did not testify to or knowledge any of this abuse so and she stated that she doesn't remember dean carter ever being at their summer house and she states that she doesn't have even much of a recollection of dean growing up because he was away in situations so a reasonable inference is that her friend wouldn't have any better recollection than she did and it just wasn't credible testimony that she what she witnessed or in the manner she witnessed it defense counsel who did a thorough investigation was in that best position to determine what whether those witnesses were credible and how mitigation theme and they could have determined that it was enough to have the one person that was in the house that knew most about it who was gerry carter testify to it the court has no further questions on the ineffective assistance claim then i will move to the other claim which is the eddings claim but just to conclude on ineffective assistance not only did they not establish deficiency they didn't establish prejudice in the california supreme court recently rejected that claim with regards to the eddings claim it's based on two aspects and one is jerry's testimony and some questions that were a few questions that were sustained on the ground that he did not have personal knowledge while reliable testimony can be admitted in a penalty phase even if it's hearsay the problem is it's not reliable if it's not based on firsthand information more ever more over most of the instances and i've detailed this in my brief so i won't go through it in great detail but most of the instances that were actually excluded by the trial court within a question or two jerry actually did testify to it the jury knew that carter ran away they knew he was and gone for periods of a time and there was some question sustained where where he was and whether he was in a wheel well of an airplane and a cement that whether he was in a wheel well of an airplane or whether he was living on the street really was not determinative to the action another question that was sustained was where did he get his food well later in the testimony jerry did state that some friends would bring him food when he would run away for periods of time the testimony elicited that carter we had away and was gone for long periods of time as a young child just escaped his home condition and so the evidence actually was did come in with regard to dr elena there are two types of testimony that was excluded and one of them was that the as an expert testimony about the conditions and nome the california supreme court reasonably concluded that that was cumulative to a lot of other evidence about no that was presented there was no evidence that she would have testified to that wasn't testified to other people in fact at one point during the trial counsel and the court discussed how much more evidence are we going to hear about gnome i think it's not effective at this point because it's just getting repetitive so that was cumulative and then the other aspect of dr a lot of testimony was on jim carter carter stepfathers prejudice towards native alaskans and the reason the court excluded it was because that a lot of had never seen carter with his father so any testimony that he was actually treated his son worse because of his feelings towards native alaskans was there was no evidence to tie that in that he made any comments or was in fact treated carter that way because of his him being a last native alaskan and on the pressures aspect of that the carter was his native alaskan heritage was because of his mother who was half native alaskan and jim carter married her in spite of that so in terms of the prejudice the fact that he married someone who is native alaskan and adopted her child who was native alaskan based on her having that being native alaskan really wouldn't have in order to defendant's benefit because jim carter didn't treat him well but there is no evidence that it was because of his status as as a native alaskan so the california supreme court held even if it was prejudiced prejudicial to exclude her testimony in its entirety there was no prejudice if the court has no further questions ok thank you your honors judge by b i got a little bit d railed when we started talking about jerry's testimony about the airplane and i was just wanted to complete one of my thoughts about it and that's this council learn law los angeles and san diego attorneys learned that carter took these extreme measures to escape is to multi his home life and that again goes back to the duty to dig deeper because a child ordinarily from harry through through jerry yes this was this is that you saw the same problem councils now dealing with its own hearsay i mean they have to decide whether or not this is reliable their right right jerry knows that he ran off jerry has heard that he jumped into a wheel well jerry doesn't know that right jerry knows that carter returned and again there were search parties that were put together and carter at some point was returned from anchorage ended up in anchorage as an eight or a nine year old kid because he's not aboard a airplane and the point of this isn't to clifton i think you are hitting the ineffective assistance of counsel claim on the on his head the most troubling aspect of the claim is what they did with dr bucks because they knew that they needed to get a pet scan conducted and they still wait until six days beforehand and it's i think the record really refutes council's claim that they made a tactical decision because during that teleconference dr bucks said i've only received a fax of the brain scan i don't have any medical history i don't have any social history he said i'm essentially flying blind here and i can't render an informed opinion so again putting the cart before the horse because the expert couldn't render an informed opinion because  trial counsel can't then say well i've made a tactical decision not to present this evidence because i don't think it's good trial counsel do you want lay this out they have a separate conversation which obviously isn't reported between mom and it's after that when the court says you're going to go down this road and counsel proclaims multiple times and the multiple times may not help him because it makes it sound like he's possibly seizing on to something but i made a tactical decision and a couple pages later the court alludes to her agreement without spelling out what the basis for that was  so what do we make of a record like that well again the court was alluding to i think indications that he might have had an anti social personality disorder and as i've explained earlier today those prior diagnosis this could have been easily refuted i see that i'm out of time i just like this and with this which is i think that we overcome twenty thirty forty with respect to the infected system counsel claims at penalty both in l a and san diego but the court has any questions about what the record does not show and we'd be happily we have we take every now and i thank you thank you to both counsel for your help arguments thanks number thirteen dash nine nine zero zero seven isn't needed for a decision by the court