they have to do make comes the court i like to discuss issues one and three today starting with issues three which involve the quality of counsel representation at the penalty it's the most tax and so i think that there's no dispute that michael bay are committed to tragic murders the only debate is whether they suffer from a history of mental illness that led to diminish moral culpability cult counsel had a compelling and of substantial the use that the defendant employed to the doctors he lied about the history of the met use at the time of the crime the history of huffing of the chemicals and the state on you it was not a spread of evidence in case about the mental illness or there was even a causal he was psychotic fully about that caret that they were not as clear as the the deaf and they didn't do the neural psychological assessment that clearly brought it out even when dr cunningham testified mitigation he said the evidence of the brain dysfunction was mixed you couldn't tell that without a full battery of neural psychological assessments which was done you did the count how many doctors medical doctors  the most extensive report that's in the record initially held that there was no causal connection but he changed his testimony in post conviction after reviewing dr harvey's report the complete neural psychological assessment and found that there was a causal connection with the crime due due to his neurological deficiencies and of course the jury had heard his testimony during the trial yes and had witness the change in the meeting that wasn't that wasn't that was not that that was not the main the main issue in the case at all the state of the defense counsel's conceded that the only issue here is diminished moral culpability worthy of the death penalty it's with and in terms of the difference in testimony i just want to make sure i have that clear the testimony cover at trial covered essentially all the same areas of testimony post conviction right as it related to his background and his mitigation specialist testified in the penalty phase in a no no the only witness to testify that the penalty phase was dr cunningham she testifies a post convention there's a lot i believe it did yes and i felt so pretty the crime the doctors appear to suggest that there was mental illness throughout his his history to get that's correct the problem that really surfaces this case is that the state keep that hang that he made it up there's no call hard core evidence and the neural psychological assessments brings that out and even doc to lure of thought that he had mental illness think in post conviction and there was also a big debate throughout this thing is whether he was hearing voices at the time of the crime loosen a even stop them last long who testified and post conviction found that he was hearing trial he said it post conviction test is too low they waited a year to do that and that's highly prejudicial and that i also point out that they should have presented human izing evidence to verify that he was hearing how the how did the intoxication jury instruction prejudice there it prejudice beer by the fact that the jury looking at these structures as a whole as as lay jurors that they believed that they could not have considered the intoxication and drug abuse traditionally in indiana you're entitled to give an instruction about mitigation and mention result of mental disease or defect or intoxication that's the normal instruction carrying out the full is that statute it was not put in there it was not put in there and they also submitted  instruction that they could not consider voluntary intoxication so do you think the jury was misled by the instructions to think that all evidence relating to the methamphetamine use including mental health the instructions concerning that you can't consider balance terry in voluntary intoxication as a defense of the crime and it was given in the penalty phase solely for the purpose of the aggravating factors which the state had approved but of course those adamant factors were in contest that nor did the instruction explain to the jury that that was only to be considered during the act during the during the  aggravating factor section of the penalty phase and so that was where the confusion was and in fact because when you look at when the instructions were given there's quite a distance between when the instructional mitigating factors was given and the involuntary intoxication instruction but they're not tied together and you know they're separate that one is number eleven and one is twenty twenty one but they also gave instruction apply may read which really requires the jury to consider these instructions as a whole and that the pacific could overrule the general because they said you would consider all instructors as a whole instruction periods and as you say did they give the instructions those three sets of instructions three different times they three different days i think the trial went on for three or four days i think the cunningham took the day to testify and then they think they have given the next day those instructions when the jury had over all three sets of instructions to do in your own if you why i don't think they were tainted in the end in the in the penalty phase i'm not been i think they were tainted in the penalty phase because there was no distinction laid between when it's in the penalty phase these fact this factor can be considered that's correct which which they had been instructed it could not be consider face that's great and they think that that's right and they also said it could be considered without making it clear that it was to be considered for aggravating factors alone and then there's no mention of intoxication the mitigation and the pan and drug and jury instruction book says they recommend that you should give that that that instruction if the if the counsel requested the in the answer in court decision we submit if it's just simply an reasonable here and it becomes very circular they say well the judge may have not given up because he didn't believe that there was evidence of intoxication and it based on that that the toxicologist report that there was no bat that he's ok and trial that what happened is about three days four days after after they they've got a hold mr bieber they did blood testing there's no math there's no math in the system whatsoever and if i can fight if i did the test there should be some meth in there but when you look closely in it all the questioning seems to be how much meth should be in the system after three or four days after the collection of the blood in the testing they don't really talk about the fact that the test was done over by thirteen months later and by then there were only breaks down in the blood and the toxicologist admitted that he was told  played the ne on supreme court nial of mr pierce claims of trial and appellate counsel and effectiveness were reasonable and within the range of defensible positions in accordance with clearly established federal law trial counsel was faced with an gave wildly different i counsel symptoms of this mental health and different versions of the events of the day of the murders and light of these obstacles trial counsel devised a reasonable strategy to convince the jury that while they acknowledged shortcomings in the evidence that the appropriate verdict was guilty but mentally you know trial counsel wisely abandon a strategy to convince the jury that the bear was intoxicated on the day of the murders other than their self or poor which is buried no evidence corroborated that he was intoxicated on methamphetamine on the day of the murders dr evans testimony about the mayor's blood and the stable molecule and so since the less stable molecule the t h c was in the blood he was he thought he would find methamphetamine or amphetamine which is a much more stable molecule but there was not certain amount of methamphetamine with him fifty hours of the sample when it was taken that he would have expected to have seen the more stable and that i mean molecule in the in the blood that was taken but he did not so well so what was the purpose of the voluntary intoxication instruction at the penalty phase since the guilt and intent had already been decided by the jury the evidence that mr barrett injected into the trial was that he was intoxicated that day and although that wasn't a strategy pursued by trial counsel it was still evidence in the record and the state was required to prove not only i'm sorry and in the panel in the guilt phase they had to prove a knowing or intentional murder and in the penalty phase they were required to prove an intentional murder which i do not read any of defense counsel's arguments as saying he didn't intend to murder so that was well how can an instruction made during the penalty phase state intoxication is not a defense and may not be taken into account so to ration how can that be interpreted as anything but precluding the consideration of intoxication as a mitigating circumstance because the jury because the aggravating circumstances are akin to an offense so the jury was supposed to find or i'm sorry the state was still required to establish that he intentionally mark are both korean jenna clark the other instructions were very clear to the jury that they could consider any circumstances in mitigation so as a very what they wanted to do but then but then was it basically said you or me to use the instruction for the trial phase so how was the state court not precluding relevant mitigating evidence by instructing the given at the end of both basis so there's there's no indication that the jury would become used that they couldn't consider any evidence or any circumstances regarding medication correct and the mental health experts and could not conclusively say that he was intoxicated but dr lawler did go as far as to say that the methamphetamine use could have been related to that if the trial counsel would like the particular mitigating i'm sorry statutory mitigating circumstances read the instructions that the floor may do that but this was the choice by trial counsel that they were not a been even if there was some confusion in the jury it's clear that there was no prejudice if we look at the account of the murders given by mr bayard through many mental health professionals and this was a very calculated he was a predatory nature he had read hearst the script before he had gotten into the clark homes the same way that he tried to get into mrs still burns home  earlier that morning which was to knock on the door and to say i'm lost and ask if he could use a phone to call his boss fortunately for mrs filburn even though he had a knife her dogs awarded his his parts and he he then saw his nest next victim so he did a u turn in the road came back and did the same script to the clark residence even though the four year old girl was the one that you answered the door so trot let me get back to this intoxication assault trial counsel in the penalty phase never mentioned voluntary in this and intoxication that wasn't part of the argument to the jury that wasn't part of part of their strategy that wasn't part of their argument  horrendously the crime it's no question of who committed it in my judgment a fair amount of evidence has been presented with regard to his mental capacity but i am troubled about a discussion about life without parole and what that has to do with this case in the whole invited response also i'd like you to speak to this issue of the personalizing by the prosecutor of his  own his own backyard in a capital case quite often who did it may not be the issue but if you're seeking the death penalty you've got to go and impress the the in a special way of the society demands so to become but upon a prosecutor to stay within the chalk lines and i'm concerned here and i appreciate that we did not have trial in a poet council being very active in objecting but when you in part an issue which has nothing to do with the state of the law in indiana why why was placed in a potential position of becoming a juror in a couple case were to presume that because there's a national discourse at times about whether people be released short of full of full among citizens that life without parole doesn't mean life without parole so there isn't the appropriate response of saying well that's not the case in indiana not to speculate on whether next year it will change because the legislature has a different attitude the discussion finally landed on that note your honor and in fact the prosecutor in the defense attorney said we cannot speculate indiana and i just isn't planting a c when you talk about the speculation that maybe next year the indiana legislature will change though don't you think that possibly alters the mind of the jurors who are seated when they're told yes this is the law but tomorrow it might change or not tomorrow but soon after it might change in film you think that affects the mind of the jurors who actually said i think your question persons that people are already thinking about that and i think that was what was reflected in the jury questionnaires and was a concern i believe to both defense and the state and that's why the topic  i don't quite understand why why did the defense lawyer would be concerned about that if he said a law is that you cannot be released in that setting of this case why why why defense lawyer would raise it i'm not sure but i know then you do you depend on the invited response by the by the prosecutor yes and it's not the current state of the law it's the speculation that it will change and i can speculate would it be appropriate to say that the governor of the state of other trials but it did not occur you know i understand i'm just saying is that he said to him if you look at this well perhaps i think if you have a perspective jurors coming to you that is in the hate on a questionnaire that they they don't believe that life without parole is something that's going to stick and that the legislature could change at the do you fall is that they're going to then say well then the death penalty is appropriate and that's why defense counsel would want to squarely address this issue with prospective jurors so that they are they don't have a tendency to think if by if i believe l wop is the appropriate sentence that one day that may be changed down the road and so there for all to follow up to to the death penalty so i think that is a very important subject matter that defense counsel wanted wanted to broach and i think that was in response to the the questionnaires that came back with this concern by the citizens and that's why it was fresh but ultimately i think it's important to know that the jury was told that by by the stay and by the defense that the law right now is that  twenty five no murder even comes close to the murder committed by mr baier and even the three men who got the death penalty you agree that's very problematic that was a statement that he made i believe in his and national closing argument write a journal penalty phase and then he goes on further to talk about his mother who was a prostitute who died of a drug overdose who got convicted of a felony when she was eighteen spent time in jail and that he the prosecutor had the worst childhood ever and maybe that's why he says suck it up if you lived in this community you would know because people back there did that i had a tougher childhood than he did referring to the defendant and somehow i managed to become a lawyer got elected prosecutor three times and me and other people who overcame such tough circumstances like this get six star stomach when people sit around and cry about how tough they hit he said that too in the trial penalty closing argument and that was in the rebuttal closing argument i think that's an important distinction because all because in the defense didn't have a chance to respond no because the defense opened the door to that line of argument right there in the door so that the prosecutor could talk about how badly he had it they talked about how their childhood affected how they not only how they were raised but how they ended up being lawyers i mean you know the french were correct yes because they were clean to the mercy of of the jury that bears child and his circumstances surrounding is is what led to his poor decision making and the defense attorneys talked about their bad yes childhood they they talked about their childhood and then they asked the jurors circumstances were like the prosecutors where they their circumstances were not like the process writers that's what i i want to get to ok none of them stood up and talked about how their mother was a criminal or their father was a criminal or on crack or anything like that  or talked about the difficulty of struggling as a child in the things that sort of made them who they are neck kind of thing he this graphic description that he made is really quite extraordinary and is particularly in the rebuff and it was in response to the defense counsel bringing up their personal lives  those statements were appropriate that he may i believe that they were he if you would have made those statements initially that would be a different case but he made it in response to the defense counsel bringing up their personal lives and their personal child so in the end so it's all in your view there is no line that cannot be crossed by the prosecutor in rebuttal as long as the topic generally has been brought in bad childhood it opens the door to these lurid descriptions of his life certainly brings in the topic of personal of his personal experience and whether the details of that experience exceed the bounds of what should  running through and to the extent that he opened the door much wider than it had been based on defense counsel's arguments that looking at the evidence as a whole and looking at the number of insubstantial aggravating circumstances and to be establish prejudice and we look at the uphill battle that defense counsel has and the number of different statements made by mr bear regarding any drug use regarding his actions on on the day the murders and we coupled that with five substantial aggravating circumstances the any in a supreme court was reasonable and finding that even if there was misconduct that this did not show the level of prejudice think it's certainly understandable prosecutor wants to see just what impact the crime had on on family and society joe but what about the issue of the cost of the prosecution and the very fact that people  unbelievable speaking about the filing of the death penalty who knows what it's going to cost our community probably half a million dollars we've got people laid off i don't see justice that needs because of this case but he does say that it's not something you do have power of certainly it's something you do to seek justice in the community but what less response and certainly there were part of the responsibility of the prosecutor for one place before the jury the cost of the prosecution again i would take you back to life where the cost of life without parole or the costs of the death penalty was brought up in question in the prospective jurors and it was addressed with these at the behest of the defense counsel or hit that questioning been asked specifically by defense counsel about the cost of this kind of prosecution or was this just something jurors sort of blurted out just you questionnaires and capital cases in indiana these are some open ended inquiry made do you have any concerns that you want to raise about cit sitting i don't mean other than inconvenience or job problems is there these concerns the jury questionnaire in this case i don't believe it as part of the record i didn't think so but routinely the questionnaires are very elaborate to go back to your honor's question about victim impact it was broached by the prosecutor during friday or it was objected to it was addressed by the judge and the parties agreed that anyone that was on that panel which the prosecutor to apologize for what he said so nobody on that panel ultimately sat at the jury the second reference was in rebuttal closing and that was after it was brought up by defense counsel and when they are closing statements and penalty phase when there's another comment by mr cummings swear he says let me be clear what i'm telling you that doesn't mean that he will be executed if you vote to find him guilty but mentally ill these lawyers will tell you they believe it's less likely that will occur if the law in the state is not clear if these and execute retarded people the next battleground this people who are guilty but mentally ill in their cases at the supreme court is deciding now and i suspect they want to be able to was something that defense council broached as well with with the no difference in that so he was correct in that statement when defense counsel may well i believe that it's a mix question your honor because the law the indian a supreme court had not settled on whether the indiana constitution would be violated if a person had been found guilty but mentally ill that question was still being debated and that was not settled you know but  was all that necessary i think it left a false impression in the minds of the jury or the perspective jurors that there wasn't any difference between the two there was a reason why  prosecution whether they were supported by the evidence whether they were in response to issues brought up and why do you buy prospective jurors or by defense counsel looking at the prejudice or evidence on them so it was a factor and the only purpose of the involuntary instruction that was given at the penalty phase was that the aggravating factors which would modifying insanity statutes and guilty but mentally ill they also try to talk that that that you're going to polish natural life that's that's not they are came out of nowhere and you know if i believe that the prosecutor began this by overreaching from the very beginning along with the or you know you everybody take a take a look at that even some of these claims the in the end people supreme court said the right appropriate but were harmless er sense of being very aggressive maybe inappropriate one time he was found inappropriate by this drug you off the deep end i'm that kind of a guy so if there's anything