virginia issue the question is in spite of the expert opinions in state court at the trial is there sufficient evidence in the record that they should have recognized that mr frazier was mentally retarded in this manner the defense originally moved that he be disqualified for the death penalty because of mental retardation they did not have an expert at that time they sent him to the court psychiatric county or excuse me clinic and lucas county the doctor for the psychiatric clinic did testing and found he had a full performance of seventy five and therefore he wasn't mentally retarded he also based that on his view that when he came in mr frazier was well groomed and was able to take public transportation and spend about a paragraph on adaptive skills and that was it the defense then went out and obtained its own expert who's a neuro psychologist this was doctors this was d small then who did not have a background in mental retardation did review the testing and determine that there was a mr frazier had a seventy two performance i however he did not recognize the s c m the standard error measurement also there was no consideration to flynn effect which is not an issue here nobody's brought up the flu in effect but the fact that mr frazier was older in age  application to have mr frazier disqualified would you say the air was firm and ineffective assistance perspective was the error not seeking a third expert no the year was that not recognizing from the evidence before them that in spite of been that the evidence for mental retardation was there when they should have spoken to dr small them about a particular because that wasn't his read i mean it was all there you don't need to go i guess i'm struggling with what you mean i mean  you say they didn't have to go to a third expert they could rely on the two they had wrecked their reports but the punch line in both reports is a punch line on which a state court would not have had authority to find mental retardation i think they would have based on the evidence i don't think that the trier of fact is bound by what the expert indicated particularly when the law is indicative that the m r is there now should they have gone and asked for a third person certainly i mean excuse me a third expert certainly if it was that ineffective assistance or because they have a duty to go to time i asked this you said no i'm sorry no politician that know the the basis on which is the answer ok well there's two  first there's enough in the record that it was m r that it could have established a a more with our third expert but the safe thing to do would have been to go get a third expert the lawyers are required to understand the mental retardation themselves you have to learn yourself you can't rely solely upon the expert the problem here is everything needed to establish m r as in a direct appeal record what what exactly shows that they were wrong to withdraw supreme court just took hold versus florida cert on on that basis on that issue if you think that you know i'm asking you another question without letting you answer the first one do you think that harbors florida is a case that we should wait for resolution of before we resolve this case ok don't want to hedge but i'm going to it depends it depends on i think there's enough can i explain it this way when the house supreme court in its decision it was raised on direct appeal by the state defenders on the basis there's enough in the record the house supreme court drew a bright line they said it's like you have seventy two in what they said they treated almost like the old federal guidelines for sentencing they said there's no basis here to go below that presumption that's the problem here you know they because there's no reason for them that you didn't need all these haulage erector of you are not ok it's a directive you review from a floor statute so how would it change things here given that if the ohio supreme court basis for rejecting mental retardation finding was based on that there was a seventy two in there is no reason to depart from and then clearly they established a bright line i q which is what the plaintiffs in holler arguing in the florida statute in the case there's a you know it has to be below seventy saying if i go back and read the has been court decision it says this case is over because of the score of seventy two they say they specifically said there's a seventy there well there is but i don't believe dr for jack said anything about onset he didn't address onset before eighteen he also didn't address the depth of skills at all the court psychiatric clinic physician dr small didn't you go down the road i'm just trying to make sure i'm just trying to clarify your point that you were saying in response to the questions about hall right but in other recent hall could make a difference here is the hospital court said seventy two is enough to not have to worry about it not initially pushing you on that ok i'm a little skeptical that that's all they said well because in the reason i'm basing that their direct quote was not directed to per phrasing a direct quote is they indicated it's seventy two in there is no reason for us to go below that they did not consider the five point s c m at all period basically and then there's a second paragraph where the house supreme court indicated in besides there was no adapter skills that are relevant in the record so they address that but that was in the sites which also isn't correct based on the record so that to get back to the point if if i think this court does not need to wait for hall if it finds that the ohio supreme court and frankly the the appellate court which found rescue to come out of it was incorrect in their finding that based on the record before them that they didn't the choose me that the defendant overcome the presumption based on the vast deficiencies are in this record which i would be happy to address  lot they the position is in and it's adkins itself they indicate that seventy to seventy five that can dress a seventy seventy five in law if they indicated if it's above seventy there is a rebuttable presumption but it can be overcome clear that there is great evidence that there was a mental deficiencies at that time he flunked first grade he had a problem with attendance he dropped out of school in tenth grade he had been put in the post conviction that for it's unusual if you have a seventy two at this point is pretty accurate because over time i q's tend to go up not go down if the unless there are other reasons which i wasn't parents record their deficiencies at the adaptive skills areas where there seemed to be the greatest disagreement dr for jack for the clinic didn't address that at all dr small than unknowingly did address his preparation in his testimony in in his report that he gave to the court i can address a number of the areas that came out  dip conceptual skills he had poor spelling he couldn't spell basic words they were basic five letter words that he couldn't spell he had trouble with reading he had trouble with math when they gave him and some of the testing he was asked and i say he obviously i'm talking about mr frazier was asked to divide sixteen by four he couldn't do it very basic math problems again he failed the first grade he was in the slow learners class he never went back and got his ged he also the  background for the mitigation showed he had been a loner get essentially lived alone for twenty years he had no real relationship with his siblings and his parents he had no relationship with his peers he reported the doctor smiled and i don't think i've ever had a front he was an o b enable to avoid victimization you know he was he was living in a project which is clear the prostitution of drug usage he had been raped at a younger age which had a profound effect on him he had a drug happened he had he was unable to sustain it's unclear he would if he was divorced had been living with somebody but he had indicated he was married and couldn't sustain a marriage all these are social adaptive skills all these are claim you know i believe so you know in this case the district court did not review it on the facts the state appellate court did not have a merits decision they found  belief was that it was raised on direct appeal in therefore they couldn't consider the dr brian scholtz affidavit where he went over this same evidence the appellate court the state  court was basically correct in saying like look this is this is the same evidence that was on direct appeal you're not bringing anything new here in the ohio supreme court on direct appeal reviewed only for plane that's correct only in a plane air standard ineffective assistance you know the best case where you know because of the part of this you have to agree they did the right thing you know they're getting experts to look at this so they're starting down the road and i take it your claim is well you can have such bad expert opinions that it's not fair and it's not it violates the sixth amendment to stop searching just because you get to conclusions that your client's not mentally retarded spit what were the best cases for that way of thinking about your theory is this that first of all a doctor for jack's opinion was literally a pair i'm looking for cases because what seems low risk cases go ahead richard you know when richie was in the a b a guidelines but ritchie this court indicated that defense counsel has a duty to understand the science to an extent that they know when they're interviewing experts if their expert has a background or qualifications for the area they needed for in this case the material so i know rich member generally but what i don't remember about it is you're saying that was a case where you had to experts no i'm thinking of a case where you you  i'm really looking for anakin state case where someone ok says this is close it's borderline it's worth an investigation you hire you to experts they give you the wrong conclusion and it's ineffective assistance at that point to drop the claim that's that's the case i'm looking for i do not know a specific and it can case where this would happen and the next closest would be ritchie well because the general yes but the general principle is that you have the duty to know the science be it mental retardation d n a or whatever it is that is a lawyer is a defense lawyer you must understand that science to the extent that you're putting on and you know what you're looking for in this case it was all there that's the frustration all the evidence backing up which is why we raise the actual innocence of the death penalty it's all there so that in this case proceed with the procedural call for let me try this again  issue it was raised as an effect of on direct appeal it was raised as plain air and direct will it was raised again on the post conviction ohio has a very quirky situation where if you raise something in direct appeal there actually is a case which is cited which is state versus norman smith where the your house supreme court has set a standard if you raise something in direct appeal but it's clear it can't be fully developed without going outside the record they've indicated that you do need to go to post conviction that the the court basically on a case raised on direct appeal never had to go to post conviction work wasn't norman smith ultimately prevailed in the post conviction so that the finding by the defense or is which court was it and why or why are we bound by that the appellate court i'm convinced post conviction in we're not bound by it for the same reason that this that the supreme court has indicated in this court photo that you have it has to be fully investigated it has to be a knowledgeable decision strategically there was no advantage to withdrawing this request there was no basis for giving up the atkins at all did again you're not bound ohio law isn't that if you have an expert even if you disagree with your expert you can make the case to the judge and you can if you know if you know that the burden is going to be  you under ohio law and you know it you have no expert testimony to support your claim why would it be ineffective per se to make that decision well if you are going to go forward we're not arguing with per se obviously there are some cases where it is a valid strategic decision so it's not to pursue a issue but in this case it is because had the attorneys understood atkins understood law understood the standards under both the d s m four in this case in the am and mark guidelines the evidence was right there before i ask you something else that that it's what the ohio supreme court said and the plain error is the that i'm saying i read the supreme court opinion to say well yeah we think that plain error applies but then they go on to find there's no error applying or otherwise what is the import of that i mean essentially the standard of review does not matter under the analysis they conducted well yes i mean i would  how does that take you out of the procedural default world because in a situation where they've where they've gone well ok you know what i'm going to concede that issue well you know before you do would not the position that step one of the plain errors standard which is is there means that there was a merits determination meaning that review for plain error is always a merits determination and has and the u s supreme court distinguished between review for a plain error review on the m and it's difficult in this case our position is it doesn't matter because the evidence is by clear and convincing establishing of the m r in this case that with the thing to just to think about on rebuttal and i think you did the right thing when you're not sure to say you're not sure but maybe just think about on rebuttal if you can cop with a response to this point the reason that i just don't understand how if you have plane air and it's got these four parts the first part is whether there's air we do this all the time and it's not unusual for us in the context of plane or a view to say well there was just no air if that means that it's the merest determination and you no longer procedural default land then the remedy is just ridiculously easy all state courts would do from then on is they'd make it a macro in your computer program it would say whenever you just day sand step one that there was no where you would then say necessarily any error if there was one was clearly not plain and blown you there just wouldn't be any did doubt that you were doing the plane air so it just seems really odd to me to punish them for not going on and saying well of course there's nowhere we also necessarily include any air was not a plane unnecessarily conclude there was no substantial injustice so that's what just seems puzzling to me about saying when the steak or focus is on the first step and doesn't say anymore that that counts is you know outside procedural default and not following the procedural default rule anyway that's my question to you don't have to answer it now i'm just saying think about it and i don't know if you have any other thoughts i'd be interested well i do it and this is the problem with doing this kind of work that you see more than anybody does because it when they give a mixed bag a lot they'll say it's defaulted and then go on and do the full merits review but by giving the merits review i think it gives this quarter reviewing courts the opportunity to understand if their analysis of whether it was error was correct or not when the court out like in this case in gives its reasoning why it's not here if that reasoning is incorrect is it still play in their review if we can look at this and see that there their rationale that their reason for saying it's not here is wrong then that must still fall within the player auspices and that's the problem that we have here and it's a problem that we have often in these kind of cases so obviously the better practice for the court would be to if it's playin is playing here not to review anything but when you go out in provide your reasoning and you go through the record and you can establish that that reasoning based on the record is incorrect or not supported by the record then why should it get t bar if that bars based on incorrect analysis and that is her position on that matter also briefly in a short time i think  the other key issue in this is on the in effect of outside of the m r or the action situation was a failure to get a drug expert for the mitigation in this case is this court has seen too often the mitigation consisted of the expert period that the expert just resuscitate ing after having spoke to family members or what maybe perhaps the mitigation investigator said draws these bank blanket conclusions for in this case they found that the failure not to get a toxicologist for a drug expert was because it was mentioned because dr small then mentioned in his testimony at the penalty phase that mr frazier had a drug problem that it's it's just cumulative and it doesn't matter but it's much more than that if you look at dr smith's testimony what he indicates in what is so important about that he talks about the fact if you have a low intelligence as clearly he did whether him or not he clearly was was impaired cognitively with the drug habit that exacerbates both that the decision making is this impaired extremely it the doctor smiled and didn't testify that it didn't matter fact he specifically said he was not an expert in drugs he testified that he had drug usage but he did not testify as to what effect the drugs would have because he is not an expert in that area in this case why that is so important is because the record indicates that mr frazier had used crack cocaine i think believe the night before in the night of so that an expert explaining how the your ability to make decisions particularly in somebody impaired cognitively would be exacerbated was a stream of importance in just was never done so the fact that you use drugs to a jerk i would believe would have very little weight because how is it in any way mitigating that you use drugs the fact that you became involved in drugs because of your background because of your at the i think it's the no i'm sorry i'm speaking out loud the reason is because the appellate court found judicata so that this issue was never fully addressed it wasn't addressed below it wasn't addressed here so it has never been addressed on the merits by i don't think that's a state law right well if it's it if it doesn't meet the if you can show cause impression get around that but then if you don't you don't win a procedural to fall claim by saying the state it's not adequately an independently applied because sometimes they use it sometimes they don't and in this case they used it it was contrary to pile supreme court standards for implying rescue to cut the budget but even under a may please court my name's brenda legal and i represent the at believe the warden in this case this case the mental retardation issue can be summarized in really one word waiver he waived this issue in the state court he withdrew his adkins can petition his motion and the state courts agreed with that waiver said that he  knowing and intelligent fonterra waiver the trial court went through great pains to question the attorneys on two different occasions and questioned mr frazier on the record as to whether he understood what he was waiving what he was giving up he same issue on post conviction using evidence not outside the record me evidence outside the record which was based on evidence that was in the trial court record so the post conviction court said it's reese judicata because you raised this issue to this ohio supreme court the ohio supreme court determined that you waited a year and did alternative merits analysis already we had therefore don't have to do anything because of race  defense at trial i believe he forfeited that issue for me but he state courts didn't get this concept because if they're applying plain error of you you don't apply plain air reviewed a waiver waivers you just withdrew it and the only question would be with you knew what you were doing and then maybe a question about ineffective assistance but you wouldn't get in you have a plan or review of waivers i guess is what i'm saying and typically your honor that's correct however i think the ohio supreme court took that added step to to analyze this on  plane error analysis to determine whether and this is in particular to to be ineffective assistance of counsel claim as to whether it was plain error for the corps for the  council to have withdrawn that and whether that was ineffective assistance of counsel i believe that that is how they analyzed the plain air alternative merits review and the plain  decision in scott versus mitchell and also the united states supreme court angle versus isaac and since this is an alternative merits review then that is afforded a dept deference and therefore it this is not a do novo review you are bound by the state court record you're bound by state court findings and as to the procedural default issue mr fraser has come up with two different procedural default arguments one that he raised at the district court and one that he raises here at the district court for the procedural default he claims that race judicata is not an adequate p bar however in his briefing when he comes to this court he says that the claim overcomes procedural default by causing prejudice under mopp and because the ineffective assistance of trial counsel that is a claim that he did not have at the district court and therefore it's not properly before this court what do you say about george morse question about hall about hall call does not apply in this case there is no reason that we should hold this case or have a direct impact on this case well it would have a direct impact for for one important reason well two important reasons one hole is a direct review case and this is a  under different but the second and i believe the one that more specifically addresses your point about the five point standard error of measure a small dense testimony in mitigation and it can be found at the  circuit appendix page three five three five smaller than testified about the standard error of measure he doesn't use the word standard error of measure he uses a five point legal room and therefore he's already put that it doesn't just go in the downward direction of course mr fraser wants you to only take in the downward direction it's a five point standard error measure in both five points down and five points up and if it goes five points up  he's even further away from the seventy and the seventy is not a bright line rule the seventy is a presumption and that presumption could be overcome but it's not in this case because in this case he doesn't meet lot your honor it's my understanding of the whole case and i believe it's out of florida that it does apply to a bright line rule that that is what that case is that's my understanding of it  and that's different than what we have here what we have here is seventy is a presumption and the inmate the at that trial court level would be the defendant has the opportunity and the burden to overcome that presumption and he cannot do that in this case and recognizing that he could not do that that his own expert says can't do it because he doesn't meet the adaptive you we can't overcome that he's not mentally retarded that is forms the basis with small tins of analysis as well as the state's expert analysis gives the attorneys a strategic reason to withdraw motion if you could explain for me i honestly don't understand what the strategic reason for withdrawing the defense is the strategic reason for withdrawing the defense is they can't make it and why not  e expert said his i q was seventy two why not try to convince the trial court well the jury i guess that would be the trial court because mental retardation is a question of law under on why not try to convince the trial court your honor because if he had tried that and was unsuccessful in that because his expert saying that he cannot meet that burden we would be here on additional ineffective assistance of counsel claim that he was that counsel was ineffective for even trying that i was right that why would that hurt him to try before the trial judge to show that he was retarded and to fail it why would that hurt him well your honor because it it may not necessarily hurt his trial because they did raise the mental retardation in and at sentencing however it is a strategic decision and it doesn't to be a reason that you can come up with or the ohio supreme court can come up with a or how court of appeals that somebody can come up with you know somebody on this panel i primed truly asking to find out i mean it's not out of meanness or anything i don't understand why your honor counsel would withdraw it when it was a question before the judge so it wasn't going to prejudice the jury in some way to think oh my gosh this guy had this lawyer doesn't know what he's doing i really you know it's almost like you're throwing a label strategic you're i don't see any reason your honor would be the same analysis as for a suppressi and he wasn't ever diagnosed as mentally retarded but here he sort of security diagnosed him as retarded and paid him money social security labeled him mentally retarded we don't know what standards they use the there or motion that competent that competent see what happened to the judge review that yes your honor the judge determined he was competent yes your honor and there was no appeal made about the competency room no your honor so that's that's the same situation not continuing with an argument that you started with well your honor the competency argument or the competency ruling is once the report came in and both the defense attorney and the prosecutor agreed with the report coming in as a court exhibit it was done you know just as a basically two minute thing we we sent him off for comment see dr forgets report says he's competent anybody have any objection to this and both attorneys said no and so therefore it wasn't necessarily that they continued on with trying to prove that he was incompetent they conceded that he was competent based on that report i'm trying to draw analogy to vet decision and the decision about mental retardation and yes and you see how they are similar or not yes your honor i do and i think that you know their strategic they're both strategic decision judge moore is probably right it's not obvious why this creates tension with something else you're doing in the trial maybe my term of strategic is is not a good term to use but this was a reasonable decision of the trial counsel to withdraw the mental retardation motion based upon what their expert said and what the state expert said and it was a reasonable decision and the courts who looked at this and the district court review at this point to go right your honor i believe that the district court reviewed it said it was defaulted and did again an alternative merits i  reviewed the atkins claim applying the unreasonable in a standard yes your honor there are particular place you would take us in the opinion transition so it only has an implication but a page forty one it says even a phrase out can claim were right for review it lacks merit right and something happened before them i believe that that quote there on page forty one is where approximately where i was going is that it was an alternative merits it's it was it you can't raise it because it's barred but then they went and did and second even if it were appear on the merits it loses the novel is that it wasn't that it was do know that it was a deference that the state courts were not reasonable in finding that there was no  you're the expert we can be checked out later i don't want to divert you from what you want to say i could look up for that page number exactly for you and provide that to the court moving on to the ineffective assistance of counsel the counsel was not ineffective for withdrawing the the atkins what motion also was not in effect they have for not bringing in additional experts first of all the supreme court has never said you have to keep shopping around for for experts and mr frazier's constant reliance on the a b a guidelines  point that the united states supreme court has said the guidelines are well and good but they are not the force of law the supreme court in bend hooks said that and so while the guidelines may say that they should keep shopping around the supreme court has never held that you have to keep shopping around for an expert to say what you want him to say ask for the the expert for the drug usage that you back i'm sorry i'm sorry i'm only asking at the actions claimed to novo and forwards getting getting your answer to judge given that i'm not totally sure i was was you were saying well listen what was going on in hall which is florida was this rule that if was the rule that if you're under if you're over seventy you're automatically non title to add what exactly was the automatic rule you i'm not sure what number they pick whether is that they picked a number picked a number they said if you're over that's the end of it and no other inquiry that's my understanding of florida law although i am not that's but that's that's your reason for thinking even if we applied didn't claim hall wouldn't bear on this case because law is not a bright line rule that's correct you're pain it is a presumption rule under law it is not a bright line rule ok i get it thank you and i think that this page forty one is the key page in terms of what standard the notably in this case but was granted a certificate of real billet and i just want to briefly mention the lethal injection claim first of all in mr frazier's case he asked for and received t way on the lethal injection claim and asked for remained for factual development however when he had the opportunity for factual development at the district court level he failed to do so he could have asked we of course would have opposed but he could have asked and he did and then he gets up to this court any ask this court to remand it for factual development that's problematic for a couple of reasons one it is general attack on lethal injection and therefore fact finding in this case would not be needed he's raising and attack that lethal injection can never be done in in ohio and so therefore discovery on what protocol what procedure what drugs we're using would not apply where it what is the status in your view the challenges to lethal injection in ohio currently in other words is there something that he would potentially be affected by in terms of  i understand the judge katz has some cases and i think judge frost used to have some cases and maybe there are some others if you could give a brief explanation yes your honor after the adams case  there's been quite a lot of confusion down at the district court level as to where these claims actually belong and which claims belong where there are inmates who are coming in and amending their petitions were now on and some of them on the second and third amendments of petitions to raise lethal injection claims we've got a few that are trying to now that the drug has changed come in and again i understand that there's a lot of procedural morass here but is there any case that is actually successfully challenging the current  injection method or is that not even in litigation that this successfully i one point the cases were successful in front of judge frost your honor in front of judge fro the case is not then determined yet it is i believe it's going on eight or nine years now that it has been going on right think were i i could even tell you what level complaint were i heard this is because the state has been  is bad and can be can be repaired however in his b s to attack the ability of the sentence it has to be a general attack that it can never be done in ohio and that's where the confusion is because the inmates are coming in and mr fraser is not of that class but most inmates are coming in and we're almost word for word the one thousand nine hundred three case but then when we had an oral argument with in mates bring these up and have us it seems really dangerous because if you get a state court ruling on it then you have a pre death friends well and your honor that brings us to frazier because that's exactly what happened in frazier and in frazier he raised this no your honor because most of the inmates that are adding this to their hades claim are already in mates that are in the one nine hundred eighty three case they're trying to have the case going in both courts and for whatever reason you don't like having lots of claims to defend of you raise this question with them because i just understand the benefit they're getting your honor the benefit they're getting is delay they are confusing the lower courts so immensely and asking for discovery and because everybody is waiting had appealed our dinner of the denial of our motion to dismiss lethal injection claim we claimed that it was not appropriate hey b s because the case that said it should be in one nine hundred eighty three this court that it doesn't belong in haiti as it only belongs in one nine hundred eighty three this court said there are times that it could be raised in haiti yes and that's that's where this court stopped it did not say and it did not define which claims go where suppose suppose that we were to affirm on the mental retardation issues and so forth and suppose the supreme court were to deny sir would frazier then have an opportunity to challenge whatever the reform direction method is at that point in time your honor he already is he is in the one nine hundred eighty three litigation in front of judge frost he already is doing that is he is a member of the class omnibus complaint they've what's happening i would get an order that was filed in the case before judge frost just within the last couple of weeks and see if you think this is an accurate description that case is obviously at this point had a protracted history that looks like what judge frost has done is looked at the actual procedure is for carrying out the lethal injections at various points those judge frost was has granted along some of the petitioners have been executed without requesting as and that litigation and most recently appears that the those have mostly that because judge frost appears to become much more satisfied with what the state of ohio is doing but he's in each one been looking at the procedures at the particular point at which execution in the weeks but furthermore there execution it is not it's not because it's not because they're abs is done that they are now doing this it is stand ok but it did but it just happens to be at a time when that's motion to stay and the temporary restraining order is just in the weeks or months before the execution they have already been members of the class for the most part and have been involved in this litigation was that the fourteenth amendment calling at this point right your honor i believe that that is although there have been some inmates said that are still seeking the eighth amendment but we believe that it is you know  not not meritorious on either well is this is the state claiming in those cases that this is too late to be bringing the one nine hundred eighty three argument about the then  current method of withdraw injection i don't believe that that is the state's position in the one nine hundred eighty three case your honor the so you wouldn't say if we were to say this is not the right time you wouldn't say that later on it is too late your honor in this case he's already in there is no too late he's there already in one thousand nine hundred three so he doesn't have to come in the month before his execution and join the litigation he's there he is already a part of this case however in this case he asked for review at the time of trial he actually asked for review at the ohio supreme court he asked for review in post conviction in this case there was review and review the review would be one of the method of lethal injection at the time now that it was being considered because how could the how supreme court five years ago hypothetically know what the method of lethal injection is going to be five years from now your honor it was not an objection to the protocol of lethal injection the mechanism of lethal injection has not changed we still find a vein we still insert a needle into the vein and we still inject poisonous chemicals you know in a dose and obviously if you inject some chemicals he arguing here just legal injection by itself the constitution yes out regard to what chemicals are used yes your honor that is exactly what is claiming state court was and that is what we believe is the claim that belongs in haiti is that it is a general attack that lethal injection period cannot be done constitutionally and the united states supreme court has said in the baze case that lethal injection is constitutional the kentucky case where the three drug protocol was allowed and it should say three drug protocol because that gets you into variations you're saying the only thing that matters is death by the judge that's correct and i was just mentioning what or what the procedure was at the supreme court not that if they looked at it under that protocol i was just trying to what the claim was the fact that it was a three drug protocol there is of no importan injunction questions or any state court in ohio but you can even raise it in state first scott the supreme court of the house said no the legislature gave no basis for doing that so that we can we can address that it's not in five forums people tried to raise that issue when they basically said there's no place to challenge it so frankly there is no difference because the supreme court has said we can't even answer that question we are able to do have supreme court thinks it's not allowed to decide understand the protocol claims are there yes why would it how capital offense to challenge protocol elsewhere that they're no longer there i mean they they actually were never there i guess the best way to say it people raise them every place they could because it wasn't clear under ohio law how would where you could raise such an even more concrete apparently your client is in the frost case that's correct why do you care what exactly do you care about the claim you've raised in this case i'm trying to understand well i think the answer is that no one knows where judge frost going to go and no one knows whether i even might not when exactly i mean hey but i mean we review that it comes to six circuit anyway so why why would we do with that route because at this point in time it doesn't get at that prints which is good for your client well there is no end to difference at all any market will forget that for ok because you get one shot is the point because if you get it through the  case because at the time when you're raising these in petition understand this petition was filed some time ago nobody knew what the best way to do it nobody knew well we know now we know what today is the interest in our reviewing it but i guess the interest is whether this court wants to be proactive or make it part of judge capsis litigation or whether this court wants to rely on what judge frost is doing could you help me out i can't tell from your brief talks about this  very very cursory fashion and act it's almost impossible for me at least detailed what your client is what can you just summarize for us what your claim is today  with respect to the lethal injection procedures yes when it was you know i mean we don't know how to address it and the reason is because of just what what would you tell us it is today but it changed i think ten days ago you know so that's the issue is this what we're get basically if you haven't a rabbit if you haven't ate right you haven't ate them in climate right it's right judge frost is talking about a fourth amendment which is not the climb before us that's correct judge frost is talking about the differences in the way in which the lethal injection procedure is carried out that vary at this point in time when judge katz case is concluded are not numb not that not all of the adams case yes is that with our court right i mean i'll take your word for that i think it is i'm stand givens question which would be nice to know ok candidly no because you know the basis was that look if we can get this court to look at it and send it back and try to figure out this issue that would be great one of the reasons again that the house supreme court said we reject the five point downward adjustment in so the court didn't understand was that it's not a downward adjustment the s c m is it could go either way you don't it's not an adjustment that's why i mention the guidelines maybe they're rejecting the idea that it's only one way but i don't know that answer but what they did say they based it on dr for jacks he said he was ninety five percent sure and therefore we don't need to that but that's the problem the ninety five it can't go more than a ninety five because that includes the five percent that includes the s c m it can never be more because of there's this inherent uncertainty in the accuracy look at those factors you're saying they looked at them but they misapplied them no no what i'm saying is they clearly said it's seventy two that's enough and then they did an alternative in even if it were there's not enough adapt