assume that i disagreed with you on that and i thought that would not be deficient performance would be defensive record not with the investigation but if i did the investigation and i learned this about the medical that and i had evidence  sit there the nd i had thought it was in the record that this was one of the most skilled and experienced criminal defense lawyers in the state of massachusetts and that he indicated based on his experience this type of defen wasn't a good defense that seems on its face to make some sense telling the jury a guy might have had a few more beers on some evening is one thing but telling a jury that a person doesn't have impulse control can blow up on you in any case so how do we conclude that a judgment that sounds like it was reasonable which is there's no way i would have presented one of these defenses how do we find that it's just not no instance will i present discuss it particularly where you're arguing about it it's simply the fact that you don't like them it's the same mental lawyer saying i would i'm sorry judge it seems that she's frozen and perhaps has dropped out of the i think thank you judge what i'd like to do is i'd actually like to remove her from the meeting and see if i can reconnect with device at this time and attorney i'm sorry attorney granik you may proceed these introduce yourself on the record that morning opinion on prejudice did not rest only on the idea that the potential there was not willing to present mental health based defenses but it was also based on the view that even if he had trying to weave this arguments about his client had a had a few drinks in order to kind of have his box fall back position the balance the fail to of human nature an excessive force in self defense but as i understand it that is different the massachusetts definition of effective assistance of counsel is different than the strickland definition it doesn't have to constitute conduct falling is and then related to that i'm trying to get my mind around how do you say that it's a deficiency not to investigate the mental state of a client per their and then turn around and also say that it's not deficient we're going to deem it wasn't prejudicial because counsel wouldn't have presented it anyhow no matter what it was it seems to me a lawyer who is c decided here is we're not going to look at prejudice really because we're going to stay near it he decided he didn't want to go to bridgwater and he wouldn't promise in the future that was the ruling of the three judge panel court decided it's what the court might decide in a different situation but didn't decide it because men often here is they didn't look at the president and therefore there is no doubt the deferentially view you're the st sport i thought it was deficient performance not to do an investigation it was then the question is ok now i've got this evidence before me would that have gone to a jury and we have a counsel saying you know i wouldn't have used it even if i might be inclined to think that you were right that if it was a no vote question  that still would be prejudicial wouldn't be reasonable for jurors if we were giving deference at that level to say well it's at least a reasonable view to say that no it wouldn't have gone to the jury because it would  been a strategic choice at that point not to put it forward so in other words richter would suggest we owe some deference to that judgment even if wrong so does richter apply there is if it does that seems to make your case at the president's level quite difficult may i may answer that's fair yes please thank you very much it's critical to the what the word justice lank and the three judge opinion did was say we are not busy being prejudiced because the defendant has defense it doesn't address diminish the pass so so under richter we have sidles with respect to diminished capacity so am i supposed to assume they would use that same reasoning into their unexpressed holding it's it says it would have been useless to or offer this i think that's right thank you ms green her thank you thank you court that concludes the arguments in this case attorney greenberg attorney granik you should disconnect from the hearing at this