penalty phase infective assistance mr grey lee will then have five minutes to address the statement claims in any uncertified claims and hope we will have five minutes for everybody ok thank you thank you feeding the cow a bottle and trial counsel asked the jury how did this darling little boy come to be in this courtroom today he then told the jury that he could not answer that question but he could have there was a powerful narrative about how mr benson kape to be in that courtroom that trial counsel failed to investigate well it one of and still does not recall what he experienced at the buchanan ranch the graphic details that we have about what happened there from his brother's well but his brother did testify at the penalty phase right yes his and there was sno and cation his brother testified about certain things but didn't test say that either so it's not as if the brother was an identified so i guess what i'm getting at is how can he be faulted if you have all of those people there but they're not coming up with anything that's depict there weren't all the people there they only found two of the brothers and there were others that comes with didn't find brad benson who did did testify in the case told his investigator that he had been brutally sexually assaulted by david buchanan from years nine to twelve and that he believed his brother suffered that same abuse when did he say that he said that to dorothy bellew the investigator and interviewed him before trial he came up you know brad benson couldn't answer a question that wasn't asked and i think that is the problem trial counsel was on notice that mr benson had a history of severe abuse and sexual victim about that abuse when brett testified trial counsel had decided early on i can't answer that question i mean i i don't know i do know that he was aware from a number of sources dorothy bellew his investigator told him that richard vincent's childhood memories were incomplete with gaps and she says it's the best thing you have going for you he suspected that richard branson had been sexually abused as a young child and said as much said that to trial counsel yes he you're absolutely right your honor he said that to trial counsel he told trial comes that you need to investigate further if this jury is going to have an accurate picture of your client and he asked permission to interview mr benson and pay place during the penalty phase if she ever asked brad benson if mr richard branson are petitioner was actually used i don't know i don't have the actual notes argue because it goes to the heart of mitigation so did she ask that she you know i can't answer that question i there's nothing in the notes to support that she did  question my question is it would seem obvious that the investigator ms ballou would have asked whether or not the petitioner his brother had been sexually abused and bred beenz and told miss bellew that he believed that his brother's likely suffered minor of later when when i read that at the time she interviewed him prior to trial prior to trial right to trial and she missed blew in turn related this information to trial counsel and urged him to investigate abuse if she did ask that question why isn't that in her declaration gone through her declaration i think it's fairly comprehensive doesn't state at least you can look at it during the break here but i don't believe i saw that she said that she asked mr brad benson regarding the abuse at that time of richard it's very unclear and so i'm just if you have it somewhere i'd like to know i also if she did ask the question and brad said that richard benson the petitioner was not abused but you say he says he was abused brad said that he believed his brother's worth a record that is in the declaration of brad benson it is in the excerpts of record i can get it for you but it's in his declaration that petitioner had been sexually abused but doesn't say when he told her that it would have been pretrial because that's when she had her contact with him i know that the investigator told counsel that there was she was suspected abuse that needed to be investigated and asked for a continuance of the trial which was not forthcoming  it was a mere hours if i recall here it is they went out to deliberate on march twenty fifth they were tired at two thirty they resisted for thirty they again deliberated on march if he was sexually or physically abused while he was at the farm in petaluma we do not know that your honor we there are time records sometimes people keep billing records but  we don't have that in this case we do know and it's in the record from the declaration of dale benson and also with in this blues declaration the trial counsel was very uncomfortable with this case couldn't deal with mr benson's family and it doesn't seem to me that there was that the communication that would have let that would have led someone to reveal melissa station as a child so all right if the decision that we're reviewing under at found no i say correct they're the wreck and that counts so on the merits we have to look and if they said that there was no i see under strickland that means that they looked at it on the merits a problem one prong two and so we have to look at whether no you know what there it's unreasonable our way and we have to give all inferences so that's that's your standard right that's right so why couldn't a fairer why couldn't they have found in on this record in fight of the i think i think that if you do capital cases you could even say these are bad for capital cases and also he had four prior convictions of the quite significant they were significant relative to the offense at hand and also his confession was quite dark in terms of the things that he said about it being a pedophile is have been and everything along those lines why nice little boy and i don't know how he got to be here in this courtroom is subjectively unreasonable well he did say though that well i mean of course your client didn't claim that he didn't did testify and brad doesn't doesn't you know he's not saying that relative to the buchanan branch so it he's portrayed it not as having had the petitioners portrayed as not having had a good life has in fact of having a horrific child life but life but more with a dad and an alcoholic father that was abusive than any number of things but he was only with standpoint because when you have a guy that's got four of these priors and you also let's just even assume that i think a lot of people suspect that someone that commits these type of crimes has had some sort of history because that just sick seem to bear that out on some level but brad does didn't do what your client did in terms of and didn't have the same history even though brad endured things like that so there's always a danger of sort of solidifying how bad someone you know not all people react in the same way to abuse people are abused and still live law abiding lives people like your client that are abused have four prior convictions for quite significant kidnapping molest and then the facts of this particular crime and it doesn't necessarily put them in a better light to say ok now you know why he is the way yes but not everyone that has this happen becomes your client you're on a you know it's kind of a catch twenty two it is a catch twenty two but as  richard benson my client had specific vulnerabilities the his brothers didn't have keek a he had fetal alcohol syndrome and fetal effects so he had suffered physical abuse he was beaten at the farm and bred would say he was beaten more than the others he was hit in the head he has a palpable ridge on his head that corresponds to one time when brad hit him with that's been deficits were present from early childhood on the farm when he was punished he would withdraw he would sit on the ground he would eat dirt and live bugs and those organic deficit manifested themselves through out his brief time in school now you're on i'd like to talk about while i'm in remind me i'm your timing did you want to give to your one do you want to turn over i want to turn over to about twenty minutes  o my argument all right so yeah you've got three three to four minutes flat ok so i just want to very briefly about the the prejudice where there is no double deference the explanatory nature of this mitigation makes it compelling this mitigation addresses both the crimes and it understandable these are horrific crimes but mr benson lived a horrific life and that is what led to these crimes and the jury needed to know that in order to have any feeling of who this person is who sat in that courtroom and they didn't hear that the supreme court has emphasized that explanatory mitigation is especially valuable in says mccollum where there was a death of an ex girlfriend among others the court said that the relationship be the mitigate i get it but we have to look at what counsel did at the time and he did hire a live ample lou it's the person that you're putting forward as the expert of all experts and she doesn't cover this and in that time period and you know no one you know he did hire her he did have them like that by a doctor he didn't call the brother that brought you know that so you can't entirely hindsight what we know today as to evaluating what he did then  what he did then is present a very weak meager case but what if no one would have said that then if no one would have said that then how can a way or be faulted for not uncovering it no one we don't know that no one would have said it your honor no one was asked mr blue wasn't given time to investigate and i don't think mr blue is our expert she is knowledgeable that we have kerry kellogg as well but one of the problems with blue is he's saying in a declaration th you need more time to do several avenues of further investigation and she didn't say what they were no idea what she had in mind as far as we can throw she may have been on a new investigation which had nothing pain incriminating statements from him there is no reasonable jurist that would come at that with say that that type of behavior meets the requirements of gerstein you have to be brought to court within a reasonable amount of counsel let's take each of those as far as coming to court and being subject to a probable cause hearing first of all he was being held on a parole hold so you didn't have to show up second if he had been there is there any conceivable way a given his confession that was done within a day of his arrest he wouldn't have been held on probable cause well they were going to or they were going to arrest him on that murder if he if he did if he several times so what is the next causal nexus between the lady of arraignment and because of constitutional we have it in the record we have it in the record when he first got into court and first got to see a lawyer what does he say he says i think i need a lawyer i'm getting now i understand what i'm facing now i understand the consequences now i know i'm in really big trouble i do need a lawyer so that is why one has a lawyer and  why wasn't that one doesn't rely on investigating detectives to tell you what a lawyer can do for you because they don't have to do that but right in the record his first appearance in court he tells us exactly what the problem is exactly what the but let's just assume you know there was a delay what's your what's the remedy you seek i mean because still within forty eight hours he gave some incriminating statements so i'm not quite sure wh r that gets you well first of all maclaughlin is a is an outside limitation it's not a it's not a you get forty five forty eight hours to do what you want and this case this is this is particularly important because in this case he's actually brought to the courthouse before he confesses he's actually brought there and told he can't and taken back now what is a defendant think when that happens i'm not going to get the court until i talk to somebody there's nothing there's nothing here for me and this is a gentleman who knows he's being pulled back from court he's been to court i was going to i'm going to ask the state this question do you know why he was taken and then  unclear to me exactly what was going on well there's a lot of things that are unclear in the record including the parole hold we've got records of say that was known at the jail than the the respondent comes up with one and we got files missing mysteriously from the parole officer  that questions a parole hold is negative evidence so therefore should be discounted and the probation officer testified partly at some deposition that he had placed a parole hold on him even though there was no document to support it but i guess back to my  question it sounds like they were thinking and back and forth which it's there's something not right with that and i agree with you the question is is there anything that can that he can be the basis for his relief at this point that you're seeking well the relief in anderson is the suppression of the statements that were obtained as a result that's why they're the langham that's why they're holding him to gather evidence and the officer subsequent he's even though he gave those statements that were very incriminating maybe not all the details that say you take out all the details to dr gordon but he gave a lot of really terrible statements to the first two investigators and i'm trying to figure out where were you lying and even if we acknowledge that was a mclachlan violation well none of those statements come in then if there's a mcglothlin violation his initial statement was and yes his initial statement was after he'd understand that his initial statement was already after he had been denied he had been brought to court and denied his right to  ar before was it within forty eight hours it was the he was brought to court within forty eight hours but the night the right to say no judge he gave statements within forty eight hours that's that is correct just first statement was within forty eight hours but and again the forty eight hour limit is an outer limit he's we've already reached the mclaughlin point he's already in court there are already denying him the right to be in court i think what was going on here and i have tried to get this governor in this is there was a consent order that required them to bring prisoners to court a lot of counties were were under those kinds sense and record are you just well well well there is a reference to it in the record and detective both says we have to bring people to court because there is some sign procedure he refers to it and when mr benson says that's tricky tricky what you're doing to me now we have to bring him to court there are some rules that require the court to do this so here's what they do they bring him to court but they don't let him see a judge that's that's that's their that's their way around it so they can continue to do their investigation now parole hold has nothing to do with the stove the power bar that's disposed of under anderson the parole hold is a question of whether or not he was restrained in violation of d they're the only restraints that are allowed according to most often are exceptional circumstances parole hold is not one it's an independent operating procedure the next day it could be gone the next minute it could be gone it wasn't even in place is our good morning in may please morning my name is david glassman i represent the respondent i will first discuss the allegedly delayed arraignment and then move to the penalty phase unless the court has an interest in me proceeding differently i'm happy to do whatever the court for the basic claim asserted by the petitioner namely that a parolee one who is indisputably subject to the restrictions of parole can avail himself of the riverside county decision regarding a forty eight hour arrai that there was that he did not have his hearing within forty eight hours here you're going to tell me that somebody can stay in custody for six days and not be told that that's wh they're being held by a judge that's not what stone versus powell says it says that there's no urgency to resolve the probation violation within forty eight hours but here it's like the at just being put on notice what in the sam hell was going on here why was he taken to court you know period of time i think three or four times over the six days and he never  as i understand the record the record does not clearly indicate what the purpose of these court visits were what what whether what the source of some confusion was but what there is no evidence of judge raghida zero evidence is their theory their theory that he was withheld from court to obtain a statement and as has been pointed out when he is arrested on the stang kidnapping not on the murder and he is he is questioned by the officers he is he's not making some statements about the murder he's not a murderer pardon me he is explicitly confessing to everything well within forty eight hours i mean it's i mean i think it's undisputed by you the state that when falling did see the judge he learned he was subject to the death penalty and asked for counsel is that correct that is not what he originally said what he originally says when he goes to court the first time is what he has been telling the that i believe that that is my understanding of the first time he appeared before a judge and what does he say at that point he says that he doesn't want counsel he wants to waive counsel and that is exactly what he has told the police officers repeatedly which kidnapping but the point i want to make with respect so then when does he say that oh i realize now the death penalty what was he not informed about the death penalty on the at his arraignment maybe i'm confused with respect to the record but he does make a statement at one point to the judge i thought it was at his first airing when he learned that he was subject to the death the transcript reference which i believe was january fourteenth that i have is fourteen fifty four of the underlying transcript that may or may not be in these excerpts he tells the court he wants a lawyer he is informed it is a capital case and that a lawyer will be appointed for him and at that point to this to this question of the speediness of the proceedings he waives a speedy preliminary hearing so once again when he is before a judicial officer and he has the opportunity he is not interested in asserting that right well there is a reference though when does he make that statement about now that i know that i'm subject to the death penalty i i r i think i need a lawyer your honor to give you in my notes i would have to review that i think you have precise statement however however if we go back to what his issue is before this court an issue that has been evaluated by the state courts and to which a d p a deference applies the question is what is the remedy that he seeks and what is the authority that allows it and there is no authority there is none from the supreme court there is none from this court that would exclude a timely confession even in the case of a delayed arraignment he doesn't cite any case that remotely holds that any court has done that and i'm just to clarify it looks like as soon as mr pitts learns that he may get the best that's healthy at the arrangement which might be later in that record that your he asked for a lawyer after a break at the recorded statement which precedes this and i will give you excerpts references he says you cannot prevent me from pleading guilty in this matter and that is my intention this is twelve ninety five of the excerpts no matter how it's written up i'm pleading guilty to it i did it and it showed me something about myself i cannot live with that that before he knows he subject to the death penalty well there is that exchange which is part of the miranda claim in which one officer makes a reference to the death penalty the other off that is that quote there was no death penalty here the other officer corrects him in our view and then benson says immediately that doesn't matter to me that doesn't matter to me i'm just i'm talking about the i understand but he said to the officer and without the laboring it there are probably at least ten sections in the excerpt where he says for example twelve fifty five i'm only telling you guys this because you can't stop it again that's at arraignment generally the court would say what you're charged with and would also say that you're charged with certain special circumstance interest which is what he was charged with that the arraignment wouldn't at the initial stages so it would say you don't say and then you because prosecutors don't usually decide if they're going to seek the death penalty and tell later in the proceedings necessarily they charge the crimes and they charge the specials and then but then maybe after the break someone maybe that's where he figured it out i don't know what do you think if you are running someone you say you're charged with twenty seven of blah blah blah four different counts it's for their alleged the special circumstances of you know blah blah blah blah blah encourage your he's going to maximum penalty possible under the law at the arraignment in terms of his notice there is no mistaking in twelve hours of statements that he makes there is no mistaking that he is aware of the enormity of what has happened and that he is aware of the consequences to him that that permeates his conversation with these officers they are talking about the murder of a young woman the sexual assaults of her three weld two of her children the murder of all three he is keenly aware and he says in a hundred different ways  that that he is mindful of what has happened and that he has no reason to continue living at that point i think that that is an explicit acknowledgement by him that he could not be in a worse position legally and practically speaking you have that on the heels of an officer saying no up to here and on the heels of that you have benson saying that doesn't matter i am determined to talk to you about this and i well i understand but he and was not was not told until the arraignment that the really did have the death penalty and when he realized that he had made some pretty interesting statements that now that he knows that the death penalty you know applies he'd like a lawyer so i'm just going on you when you know your best response but let's talk about why you think that mr benson's counsel's actions case allowing a jury to be affected by persons in the jury in the courtroom wearing badges contrave the defendant and as well as the provisions of the d p a correct a timely confession if you will would be excluded but my more fundamental point here is that and there is testimony in the trial record as i recall in addition to the deposition that was taken of the parole agent that mr grail and i took many years ago in which he specifically testified that he was played had placed a parole hold on one fence and you know the idea that well why aren't there more why isn't there more documentation that deposition was taken in two thousand and one or two if i recall this crime is in one thousand nine hundred eighty six so when we are piecing together the pieces here thirty years down the road there are limitations i think and what but regardless there's no reason to doubt the  we know that he was involved in the case we know that he issued a parole hold on the stand kidnapping my more fundamental point is if there's no paper trail if the parole agent doesn't show up at work that day the irrefutable fact in this case is that benson was a parolee riverside county in our view doesn't apply to him the forty eight hour rule does not apply the someone whose parole status puts them in a different category he does not have the same prompt arraignment right as a non parolee there are as this court knows there are various aspects of parole and how they limit someone's status and that applies in this case and if we're wrong there's no case saying so that is no case has applied in any court to my knowledge this rule to a parolee now i'd like to turn to the penalty phase clinic a i would also and i question when you go to the penalty phase yes i counsel for petitioner acknowledge that it is at her preview yes but ok so what are we reviewing and i v asli i believe that the supreme court that it's it's on the merits but there isn't much there are so what how do we look at that and they're both saying i mean there's two prong side to say of strickland first whether you know if they fail to investigate and if there is i don't know if you want to say  a claim of ineffective assistance of counsel in the penalty phase as raised then denied ultimately by a unanimous state supreme court on habeas corpus review and as has been pointed out although there is not a written decision that is a merits evaluation that is entitle to the deference under the d p a issued by the same court that unanimously rejected petitioner benson's direct about a rejected it does that mean that th apply to the deference applies to both prongs and this is a case to start on the first prong and the first prong as we know one director we're not simply now evaluating whether or not a lawyer should have done something differently and i'm not going to acknowledge when i move forward that these lawyers should have done anything differently as i will explain but the question isn't whether or not their conduct was reasonable the question under rector under the a d p a is whether or not a state supreme court that evaluated this claim acted so on reasonably in deciding that a lawyer could have proceeded this way now it's important i think to put aside the the myth of what this penalty phase was so counsel described the penalty phase as though on the heels of even by death penalty standards one of the more grotesque crime spree that that courts review counsel says well they showed the jury a picture they suggest to the jury that there was an idyllic childhood and lo and behold benson had been subjected to extraordinary abuse i want to first clarify what actually happened in the penalty phase because i don't believe that it's been accurately described fence and is one of seven children born to two parents who are chronic alcoholics the jury knows that his mother is a prostitute and a drug addict the jury knows that he has abandoned almost immediately as are all of his brothers right there all shipped off the jury knows that  in the eight or so years that he is in this foster care situation in petaluma on this farm he sees as mother a total of three times they know that when his father regains custody of these children they become nomads they move from one skid row hotel to another live in a chicken coop at one point their father remarries he remarries an abusive alcoholic they know that that is richard benson's paff they know that the state intervenes to take control or custody of these boys benson is placed in a different foster care situation when he is eleven years old by thirteen he's in prison he's in the juvenile prison in california the california luther thorney this is this is not the the disneyland farm outing that has been described as his childhood what they what the trial lawyers knew both of whom are deceased neither of whom can explain conduct that happened thirty years ago what the trial lawyers knew was that benson has said it's in the record the time at the farm was among the happiest time of life that the mother figure in his life was the foster mother not his biological mother so well so let's talk about what i want to just address while we can then since arguments regarding the deficiency yeah i know you're talking about that but i have some point in play since i want to ask you and get your response because it seems like based on and they're pointing to ms bello's declaration i believe it appears council was meetings with benson so that he might be able to develop further mitigation evidence it also is alleged that counsel ignored repeated requests by the investigator to continue when the investigator figure out what your response is they're not similar for several reasons first of all what do we know from this penalty phase again looking at it in terms of what strickland says strickland which is i think a co misunderstood case stricklin is a case where a lawyer made a phone call that was the lawyers mitigation evaluation and strickland making a phone call this is a case in which these lawyers are not only communicating with their client they're communicating with two of his brothers at a minimum they're can i'm talking only about the penalty phase now they're communicating with his sister they're communicating with other relatives they have they identify a teacher they bring in mental health experts there is no case that i'm aware of the ones that you've identified the recent entreats case which i cited in supplement briefing i know you're on the panel in that case your honor or there is no case in which they're reviewing court says notwithstanding the fact that all this work was done that there was an attempt to explore thoroughly the defendant's background that because one can allege allege in hindsight when these lawyers are dead dorothy bellew's declaration is dated after the death of trial counsel kenneth vili but the sexual abuse i mean it seems like it goes to the heart of medic mitigation and so and so is that feinstein it  i don't want to make sure i understand your argument why it was ok and not deficient for the lawyer to this is zero like like a laser focus on that sexual abuse and i mean the that that benson state appellate lawyer described in the briefs as as awful or words to that effect now to say in hindsight well as though it is a fact that trial counsel made a conscious decision the trial counsel that someone is sexually abusing their likely sexually abused themselves and it seems odd that it's during the penalty phase that they're just you know finding out about it's being revealed that brad the brother was sexual abuse and no one stops and says ha wow even despite what because we have case law that says despite what the petitioner is saying maybe this is an area that we need to really focus in on that might explain and offer mitigation when these interactions happened between this lawyer and his client none of which are known to us and they happened thirty years ago and none of these cases had been decided and none of these cases had held that and i submit they still do not hold that if if a compelling thorough mitigation case is presented assuming that there was a conversation that took place for all we know benson denied it benson to this day doesn't allege that it happened but he says on the product of my environment when he talks about the foster it seems like when brad benson says that and you know that mr benson the petitioner himself says i was farmed out in bad foster homes and stuff it turns out i'm a product of my environment i don't know why that doesn't send off bells and whistles to somebody at that point when you're in the medication stage saying wow i wonder if we need to do more to offer up because i understand i'm sorry you are because we are talking to trial counsel brad benson testified brad benson described their childhood and how things got worse after the foster care after the farm if lo and behold this was a myth if if if if brad benson was concealing from trial counsel what occurred there there is no basis on the facts as they are known in this record to decide the trial counsel i ntentionally turned a blind eye to information he probably never received but there's a declaration that this was discovered during the penalty phase again i am i am at a loss  suspecting i have to say because in reviewing the briefs i frankly didn't anticipate dorothy ballou to be a prominent part of this much as i would like to point out there was a published case in the district court tried at approximately the same time as this case lang is the petitioner kind of line i know the case because it was my case it's another capital case tried it approximately the same time and the investigator ms ballou says the same things in that case that she that she was in charge in effect that these lawyers were incompetent none of these allegations that she makes in this case for example if she was suspicious of counsel's performance there's no contemporaneous identification from her that more needed to be done where in the record other than her her decades removed statements is there an indication that you brought in the thing to counsel's attention or that counsel was in fact insensitive to other mitigation issues but the judgment so i guess that i guess what i'm saying if it's at kharif you yes all right we have to look at and terms have if basically could they have you know could they have gotten where they got so and so what actually so that's why and terms of what was actually known to counsel at the time we know counsel hired some mental how people we know they hired we know they were talking to people and the family and all of those things from the evaluating it is there anything in the record that actually shows that the counsel for the petitioners knew that he had been brutal a molested at the farm i'm not aware of any witness any evidence that that establishes that i am not aware of any indication that counsel as a strategic matter decided not to present sexual assault evidence that i don't believe is in this record however sexual abuse she has been suspecting that the defendant was are the petitioner was sexually abused as well and so i guess your position that's just not sufficient notice i position is she's not his lawyer she may come to understand what she's saying she told counsel she may have suspected any number of things what we don't know because of the passage of time and the fact that people are deceased is we don't know what councils perspective was with these of the whatever she told it so you're and that brad benson the brother had been sexually abused and decided strategically not to bring that out yes there could have been but you can't you can't call a witness in a penalty phase you can't pump alou on the stand and do you suspect he was abused absolutely and i mean no court that i mean that's but there's no basis for it she can't speculate as to that my point is as a hypothetical if mr bailey or mr potential knew what i don't think there's any evidence that one can plausibly assert that they knew there may have been and strickland speaks to this not much much less the d p a there could have been any number of reasons why they would decide with a penalty phase  submit unlike york description of the andrews case like so many other cases is so elaborate is is complete is not a picture of a little boy on a farm that is not what they heard and finally because you would just just bear with me for just a minute would you agree that there is a reasonable probability or disagree there's a reasonable probability at least one juror would have voted for life if the jury had heard mr benson's two brothers testify to this terrible physical and sexual abuse that the the extremely hypothetical nature of this just however just bear with me on this i think that to the extent that one can assess cases and one factors in the deference that is required in this case in terms of the evaluation to say that it is reasonably probable in a situation in which an extensive mitigation case was presented involving abuse neglect the impact of drugs abandonment a totally chaotic life  life spent in prison and incarcerated and with no responsible adult ever in one's life etc alongside what is what are facts of a crime that one cannot really even comfortably discuss even in a court of law involving all these murders and urging the child the abuse the benson brothers suffered the sadistic abuse at the end the obvious rejoinder which is that those brothers by the way so what became of them they went into the military they developed careers one overcame a drinking problem they became successful in life they didn't become homeless sidle paedophiles just say that it is reasonably probable that any death qualified jury would give vents a life i think is is is certainly well beyond the standard of review that that controls in this case well i mean let me just don't worry about the time because we're going to ask the questions so the way that judgment stated would you frame the standard every year the same way that she stated  the petitioner has demonstrated a reasonable probability that had counsel proceeded in the manner that is proposed by the way because i can't resist with experts that were recruited over many many years right not within the timeframe of a trial not within a one year period not local experts but people identified from around the country and family members who apparently if we indulge this these statements family members who make statements that are inconsistent with their testimony under oath in a penalty trial with confronted with all that is it reasonably probable that a jury that unanimously found that death was the appropriate verdict for four murders and all of these sexual assaults it is not the jury got they did they had an understanding of claiming that this court can ducks and independent evaluation of what is a reasonable verdict the question is one of the reasonable probability correct of that verdict the question is and th my question was i understand double deference i just wanted to you to answer that particular i understand there's another question that we have to resolve and i would say that by the way if these facts were undisputed i would say that these facts were disputed my point is that what we are engaging in at six seventy one at five forty one to wherever else in these excerpts is this parsing of information in order to attribute some knowledge to counsel that i don't believe well whether it's mine or not it's important i think to remember in this case that that beyond these murders which are horrific and this is something that the jury would have no obvious lee soon as the  soon as he's killed the family he kidnapped the woman so it's not just the four priors and the murders and the sexual assault it's another kidnapping with a hostage so the enormity of his conduct i think almost can't be overstated could a state supreme court on on a a fragmented record of allegations like this come to the conclusion that he had not demonstrated a reasonable so another at this one question i had it seems like the trial counsel and then there's it's in the record it was focused on the penalty phase of this you know you know here at this trial and he decided to focus on that time when he was with his father which turns out to be just a year when if this time at the foster far here was zero to nine years and it turns out when you look at the benson brothers declarations what happened there was really significant in terms of potential mitigation and i understand you know the notice here but you had at least mr kellogg aside from the investigator if you want to discount her who's telling him that there are some you know suspected you know sexual abuse so i'm just trying to figure out whether this life with father doesn't it pale in comparison to the canon farm abuse so a couple things first of all to the extent that counsel was focusing on the penalty phase i think that says that it would arrest point that is only a point in his favor both of them because they recognized you know behaviors petitions don't look like trials they recognize this case would come down to penalty with respect to the focus within the penalty phase and i appreciate that your honor is identifying information that that in which other allegations are made but i think that when one reads the penalty phase in context and completely these lawyers were trying to portray a terrifying and abysmal life and within that life in terms of exactly what happened at the farm we know from contemporaneous information not after the fact allegations from interested parties we know from contemporaneous information that life on the form other things he would be impeached with what he had stated previously but also all of the family members that endured this did not turn into the person that the petitioner turned into so when all the things  that we're talking about creating that and that we want to create this you know we want to say this is why he did what he did then you put it right next to it these other people the same thing happened to them and they didn't do that so that's why that's why strickland says there is respect not not not without limitation there is an understanding of what a lawyer who is defending a case is dealing with that does not necessarily leap out of the appellate record and to say in this case when we have from the from the interested party to put it mildly when we corroboration from benson himself that these things happened to him much less do we know what communications we have case law that says that we don't have to rely on that counsel should rely on the on the on the petitioner themselves never in a case i submit where so much work went into presenting a penalty phase so this isn't this isn't the lawyer in strickland making the phone call these lawyers are intent on presenting a whole a comprehensive penalty phase and i think i would just ask the court finally and what so even if there were for example strategic reasons why one might fear the backlash of the kind of testimony that i'm describing given that we know that they were interested in obtaining relatives obtaining experts telling the story of his life there was nothing objective lee on the record in this case that would to conclude that either of these lawyers nevertheless decided no wait a minute i don't want the most compelling evidence i want to put on more marginal or less persuasive evidence they they were determined to save his life they put on the the results of a lot of work on their part to locate these people to bring them into find experts i think that it it begs reality to say that if they knew that there was a more plausible information out there they wouldn't have used it unless for example they were given much different information beyond the record and of course we don't know what we don't have in our record but but strickland says that point that admission a layer of you know i asked you the first question would have been recently probable for one juror had they known this information to come out differently i get your answer on that but then we had the additional layer sort of hit this but i just want to get your full position here thank you on whether it was reasonable to sentence mr benson to death when this compelling evidence that he argues goes to the heart of a mitigation was never presented to the jury first evidence has to be demonstrated in a record so with with with the excerpts that i've identified subject to somebody else telling me what else there is that we can sort of hypothesize what counsel might have concluded maybe happened to richard benson might the fact that you know the lawyer is entitle to defer to an expert whom he retains to evaluate the defendant there's no indication from dr abell the psychiatrist that any of this occurred when he testified that's his job to figure out who he's evaluating that didn't happen so so i don't acknowledge i don't concede that the that this was withheld from the jury but even if it were in the worst case scenario even if it were yes i think that on that continuum of of culpability that this court has talked about that benson is beyond the pale and that this kind of information would not significantly alter the assessment of him by any juror but as as i was correctly corrected the issue is could the california supreme court have decided that regardless of whether another fair minded judge would come to a different conclusion and the answer is absolutely yes thank you for your argument thank  say that the remedy for a violation of a fourth amendment right to present meant is a suppression and it relies on a clearly established supreme court precedent for that because they had the question before them at the time does not apply to the fourth amendment claim because the state supreme court did not rule on the merits instead they said it is not a cognizable claim in hey b s it also doesn't apply because at the hearing below and it's in the transcribed record counsel attempts to present these facts and he shut down and one thing he doesn't allow to present is what the district attorney told the police officers were the reasons why mr benson was being withheld from court it's not a fair hearing it's not entitled to deference under twenty two fifty forty one finally mr mark tells deposition he has his one nine hundred eighty six file we know what's in it and we know what's not in it and what's your honour's challenging crimes and challenging aggravation required trial counsel to rise to challenge in presenting a litigation trial counsel did not do that standard of care back in one nine hundred eighty seven when mr benson was tried was the one thousand nine hundred eighty edition of the a b a standards for criminal justice which required counsel to explore all avenues leading to fa relevant to the penalty in the event of conviction the standard in the mid one nine hundred eighty s in terms of handling death penalty cases i was handling death penalty cases at that  time the standard was somehow not it was an undeveloped there was a clear statement of what trial counsel would be required to do much like the supreme court found when they more like to address mr glassman comments about the mitigation that was presented at trial brad benson was caught he last saw his brother twenty one years before dale snow last saw his brother twenty nine years before trial sandy benson sandra but benson who was called last saw petitioner thirty years before trial they also they didn't call the other siblings which is significant they didn't find and they didn't find one bill who was living in santa cruz at the time holmes benson who is mr benson's uncle met him met petitioner five times in his life he testified that the father was an alcoholic mary pat de groot was a a nurse who had treated dale snow for alcoholism she never met petitioner she testif while he was in the residence he later admitted that he hadn't even listened to the tape of mr benson's statements to the police and that if in fact the  things that the walls were bowing and if people were knocking at the door in reality then anything he had to say was worthless we had grace o'brien a teacher who had known mr benson for four months in junior high school testified that he said nobody believed him and that allowed the prosecutor to continue to assist mr benson who has severe memory gaps and can't remember things and what do you make  lying can you respond to mr classrooms argument though that you know here the two brothers personally suffer similar not the same abuse and they haven't gone out and committed these sort of horrific crimes that is true in capital cases there are there are individuals within a family who for whatever reason do not have the resources do not have the inner strength to to carry on this is not a high functioning family let so but i asked mr glassman any questions regarding why there would not be prejudice here and i'd like to ask you the question as to hood abuse and cognitive impairments there are still a great number of aggravating factors in this case in fact this case is probably unique with respect to the aggravating  benson has for prior some valving kidnapping and or molesting young girls his crime in this case involved three innocent children and their mother who was brutally killed on top of all and sexually abuse on top of it all there was also a subsequent kidnapping it seems like this case goes pretty far with respect to the aggravating factors and so let me ask you whether what's your best case that fair minded jurors could disagree that state courts the state court's decision conflicts with the court's precedence in light of these aggravating factors  i believe that their mind and jurors cannot disagree with the proposition that these are horrible crimes but mr benson came up  horrible environment and there is a direct relationship between what happened to mr benson child and these crimes and i think that if the mitigating explanatory evidence ha nexus to the crimes and nexus mitigation does not need to have a have a nexus to the crimes we know that but in this case there is a direct next there's kind of some other aggravating circumstances too he  really need to kill the kids because they couldn't have even identified him they couldn't qualify as witnesses they were what for the rainy and i think twenty two or twenty three months old and i think that i don't know this for a fact but i have a feeling that that's why some of the special spur stricken because i think he was convicted of killing witnesses or something yes your advice but you you know you can't the three and four year olds and twenty three month olds aren't go qualify as witnesses so he didn't even need to kill one and he did well in a and he burned the house down and in a meth amphetamine with the brain damage methamphetamine use i'm not sure that you know your honour's way of thinking about things can be attributed to richard benson no i don't think you know i don't think you can put but when you're talking about tourists and what that the tourists think like i do the jurors think like i do and so when we have to look at prejudice and all of that that and those are all things that really you know that there  a case with the the defense was charged with murder there was a prior murder in aggravation as well as the rape of an older woman by a much younger man the court says that a juror might have seen the prior murder stemming from repressed anger about the homosexual rights of petitioner by his father and step grandfather and a juror might also have seen the rape of a sixty one year old woman by a much younger petitioner as deming from a childhood filled with rape and sexual abuse across a generation committed with impunity and in dover says ayers the court reached the same conclusions noted the causal nexus between the mitigation evidence of the defendant's abuse and the crimes and it said that evidence of sexual victimization would have offered the jurors a way to understand though of course not justify those aggression as a product that was accessible and i think that aggravating i think terry terry williams the case reversed by the united states supreme court there was substantial aggravation assaults on elderly victims threat to society your honor i think that the notion that no amount of mitigating evidence can ever matter in a case like this is contrary to shocking crime puts law too it's a virus test and i think that's true but by this judging by the standards that apply in every capital case even the ones that are not so the court's decision in wharton and the court's decision in joe versus ayers both of whom both of those decisions rely heavily on cases involving  you know aggravated k k cases that they rely have a nexus between the crime and the sexual abuse i would also say that the if the court looks closely at the witnesses that were called at the penalty phase the court will do that not that this was a wonderful penalty phase that was there but these witnesses strongly resemble the witnesses in allen versus woodford that the court that were proffered on habeas and that this court said those are not good witnesses they are people who knew him long before the crime purporting to call brad i test point where i would have been called but he certainly would have been questioned in a different way than he i know but gravel combat's a good way yes you can say brad is not a god when a sub brad is a good witness for their purposes he's not a good witness to show what the their lives were really like those as a whole different thing brad was good if you posit if you take the district court's position that well they reasonably chose to present this is a nice little boy who gone who had gone wrong that is that by the way it's not trial counsel statement about it trial counsel said that none of the evidence would have been presented that we have presented that we came up with on habeas none of that would have been inconsistent with his defense at trial and he also said that if he had known about organic brain damage he would have presented that evidence it's a it's a difficult case it's difficult because of the nature of the offenses it's difficult because of the vacation but when you look at what made richard branson and when you consider what happened to him as a child it all woman after any os like help the mother who was not a true you know also that woman was also kidnapped it's kind of the strange it's a strange case the case of karen stang but he also told her that he also on a mission to children from a suspended police officer who was using his family forcing his family to make pornographic videos and that he had a supercharged car in the back of a house that would allow him to catch this