branch and judge grant and i appreciate counsel's cooperation in whole days argument mostly by being today you should counsel you should be able to see on your screens our time or which will display the time you have remaining in your argument when you get  minutes in your time allotted the time or will turn yellow and then it will turn red when your time has expired also in that you have two minutes left mr thomas will give you a verbal warning about that this or fujairah says that you have reserved five id team is with us and then should be able to resolve any problem and get us back to the argument especially as possible now so i remind you that we have read your briefs and materials you submitted significant parts of the record so we are due to jump right into the heart of your you may begin when your breath it please the court josh was there on behalf of the appellant mr barber mr barber was sentenced to die after a trial in which counsel recognized that his guilt phase defense was impossible and therefore knew that mr barber's life depended on the case of penalty phase despite those life or death stakes the jury in judge never heard that mr barber made multiple suicide attempts including being found on his bed with a sho head and suffered from depression the jury and judge never heard about mr barber's extensive family history of mental health issues that his mother for example was hospitalized multiple times for mental health problems and suffered episodes like being catatonic for a week sitting in a chair without blinking or moving and losing sixty pounds when mr barber was in his early teens the jury and judge never heard that his family's profound mental health and substance abuse issues left mr barber a draft and then as a result he started drinking at just eight years old that's rd grade and his home life was littered with drug and alcohol abuse by family and friends who were supposed to be his caretakers that presents a materially different picture from the one the jury saw trial counsel painted a picture of someone who grew up in a bucolic new england town riding minibikes with a pleasant home life good parents and quot and a quote happy childhood someone who like many kids hung around the partying type crowd with drugs and alcohol in high school in order to fit in and someone who as an adult was quote pleasant and considerate but whose quote personality did change when high on drugs and alcohol that picture has no basis in reality the picture from a constitutionally adequate mitigation investigation would have shown among other things mr barber with a shotgun pointed out it had his frail mother catatonic and staring blankly from a chair and the corner of the room drugs and alcohol strewn all over the house and an eight year old boy drinking those are two very different pictures a hapless crackhead doing a bad thing is not the same as a suicide individual suicidal individual who broke after a broken life a forty two year old with an id childhood who went on a drug and alcohol binge and made a bad decision is not the same as a person who started spiraling downward at just eight years old and whose family gave him no ability to escape despite trial counsel's penalty phase failings the state court and deficiency as the district court all but recognized the state courts rigid standard differentiating between no or some medication misstated clearly established law as sears hold and as the district court indicated but then sidestepped when different when the deficiency question is analyzed correctly the meager mitigation investigation that led to the misleading image of mr barber described above was inadequate it was the shortest of dr rosensweig career in which she admitted lee did not learn core facts about mr barber's upbringing in life that is true moreover even though dr rosenberg and trial counsel had numerous unexplored names and information on their desks and at their disposal that would have  locked critical evidence on issues like mental health counselor yes the medication evidence was present there was evidence that he had started drinking at a young age that he had been running around with a did refuse to participate so what role does that refusal to participate have in our analysis especially when there was an investigation done despite your client i couple of answers so that i think legally it does not affect the underlying duty on under the th amendment to perform and an adequate mitigation investigation there was a lack of cooperation in porter and  it didn't prevent the court from nevertheless finding that there was a th amendment problem and the nd part is that dr rosenzweig testimony about mr barbour precluding her from doing an investigation simply doesn't hold together he didn't this is not a case where they didn't put on a mitigation case as you say they did they put it on he didn't block her from doing that he spoke with her for two hours and she never came back that was eight months before trial  he he likewise said he likewise gave them unleavened names of people who were there on their desks available for mitigation investigation including beverly rise door mr mr barber sr who would have testified about the suicide attempts and long standing individual and familial mental health problems but trial counsel and doctor rosenzweig simply didn't reach out to those people eight of eleven names that he gave them they didn't reach out to so this isn't a case where he said don't put on a mitigation defense at all he didn't say that he testified at the rule thirty two dollars hearing that he didn't say that he gave them names and they didn't follow through so even though they have a constitutional duty irrespective of how cooperative he was the fact that the allegation that he wasn't cooperative simply doesn't hold together and the testimony shows that from the rule thirty two hearing the names were there they had the individuals they simply didn't follow through and the district court affectively recognized as much the district court said look i'm going to skip past deficiency but i think it's i think the words were at least a close question to talk to mr barber for two hours only once and never come back and talk to to four other folks for a total of four hours to never follow up on any documentary records or anything like that when the names were right in front of them they were staring them in the face and mental health problems have come up maple's this is one of the cases that we cited in our brief where suicide attempts were were an important piece of the puzzle and cooper that was another piece of it there was of course abuse there as well but suicide attempts or or a piece of the puzzle the same andrus the supreme court case from this year so you know and more generally that is again as porter and we can say this these mental health problems both from his family and from  self are the kind of troubled history that the supreme court has said is relevant to assessing a defendant's moral culpability and the trial court the jury and the judge heard none of it there was nothing whatsoever about either his family his this court porter from the supreme court talk about and endless from the supreme court talk about suicide specifically and more generally about mental health problems and mental health problems being distinct from substance abuse problems the state wants to lump them together at page forty five dollars of the state's brief they say it the evidence the trial was was presented on mental health issues because there was evidence of substance abuse but they're just not the same thing por er had some intoxication evidence at trial but it was on reasonable to discount entirely post trial mental health evidence as the state court done andrus is similar and johnson there was a lot of substance abuse and some expert testimony on mental health issues but the court the trial court and the jury didn't hear about the mother in that case it was the mother not the individual but suicide issues that this court held changed the picture it was a different picture from what was presented at trial what was presented to what should have been respect one is that it's relevant because these issues are hereditary and that came out of course that at the at the post trial evidentiary hearing these issues are hereditary and it's clear that they fell down to mr barber and affected its life and it's also relevant because she was a family member around for his upbringing and when people including his mother and grandmother people who are supposed to be role models are instead suffering from severe mental health problems  points going through shock treatment he's obviously not getting the kind of support from parents grandparents role models that he ought to have and this is something that the jury heard nothing about well the jury  household of seven children you know the parents can't always pay attention everybody but that was in the context of a picture presented of mr barber where that was part of of again an idealist childhood where everybody's out riding bikes models like joel barber his brother and his brother in law ron kitteridge who had violent streaks were drug addicts convicted criminals detach parenting style that led to a lack of intervention or a lack of guidance no active involvement in their kids lives is we think a part of a picture that that is that is simply categorically different from one that's these were good parents it was a great childhood it was a great life sure they were unable to pay close attention to everybody at all the same time but you know at the end of the day everybody everybody was was having fun was happy the parents didn't divorce it's just not the same picture as one where they're paying no attention people who are supposed to be taking care of him or being convicted of crimes are high on drugs and alcohol are violent that's not the kind of role model or or parental supervision that that was painted to the jury in the st instance didn't  himself testified that he had a wonderful child and had the family had animals and horses in a pool all these sorts of things that if that's his own testimony that he had a wonderful childhood how do you get around that because dr salak and testified about this in the post trial hearing oftentimes that's that's in some sense exactly why you need to dig deeper particularly when you have these names like his sister on your desk because defendants w often remember things in a way or try to paint their their past in a way that for whatever reason is inaccurate and dr salah can testify to that explicitly and so you have to dig deeper and when you have again his sister's name right there on a list and you don't contact her and so you don't learn that in fact it wasn't so happy maybe they had a pool maybe they had many bikes but there were people high on drugs and alcohol there was a cow tonic mother he tried to kill himself that that is that is different and his testimony that he thought that in hindsight his childhood was happy doesn't change that i wonder if you can help me understand generally how mr barbarism testimony is a hideous hearing fits into this case because it seems to me that you were a lot on that testimony to weave together with the two experts to show how does that help his addiction might have affected his crime but had a survivor testified after having claimed innocen but the trial if you had testified at the penalty phase what was the jury do with that but tell me how the system to the prejudice analysis mr barber testimony about substance abuse and his state of mind at the time of the crime specifically so i think i think that that i think it's part of the really weighing that has to happen after the post trial hearing where you take everything that came out both at trial aggravating and mitigating and you take what came out after trial and you put it all together and here the sentencing order contained a number of number of findings that respectfully we think there's a reasonable probability that they would have been different or that they could have changed so no evidence that he was under the influence of extreme mental or emotional disturbance and likewise drugs and alcohol quote may have given him the tenacity to commit the crime but again found quote no evidence that this capacity that his capacity to appreciate the criminality was substantially impaired and if you put together all of the information that came out including mr barber starts to moni that he just snapped he didn't really know what he was doing from the rule thirty two hearing we think that there's a reasonable likelihood or a reasonable probability that those findings could change they were undermined the sentencing findings just like happened in the courts williams case whatever their case it was the warden where and i did see that case and you're on it wrote it but this is not a case where where the state is arguing or anybody has argued that there was a complete shutdown of the medication evidence and therefore that he needs to show that threshold that threshold reasonable probability that he would have permitted a medication case if he were more fully advised that that's not that's not what's going on here the state's never argued and there's no evidence  and excuse me unlike in james there is evidence not only buy based on the fact that he did put on mitigation evidence but that he would have allowed more at one thousand five hundred and sixty five page sixty two he's asked did you do anything to frustrate your attorneys efforts to put on the mitigation case he says not to my knowledge but may i lapar rate the only thing i insisted on is that they don't bother my mother and he goes on and explains that she was seventy five year old years old with the onset of d a serious respiratory disease and her son and husband in the last decade he doesn't say and in fact testified to the opposite that he would not have allowed them to put on that case had he been more fully advise did he would have said you know his representation whatever he did what do we think that testimony comes in the context at two points one is the context of that testimony is important the point in time he's talking about he's talking about a plea offer and he's saying that he he wanted to have hope at that point he didn't like the choice that that he testified was presented to him that it was either the death penalty or life without parole  testified as well at the rule thirty two hearing that he didn't know other defenses could have led to a lower sentence but in any event the testimony that's clipped off from i believe state court's decision goes on  and sixty one to say very clearly i didn't want to die i never told them oh you know i don't want to live i want to die that's not what it was i want to live i always did so that it's not a case where he said i want the death penalty i'm not going to put on a mitigation case he didn't say that he he was presented with a sort of stark choice between two plea options and at that point said i don't want to do that but it wasn't a case where he sort of shot down the medication testimony or said give me the death penalty full stop that was that came in the court started questioning dr rose where that was her on the mitigation case she wanted to put on in effect because he wanted to get the death penalty but again that doesn't that testimony simply doesn't hold together she she talked to him for two hours and she gathered a whole bunch of information from him he didn't say i'm not going to talk to you he talked to her for two hours she just never came back that was eight months before trial she and trial counsel had a list of eleven names they didn't talk to eight of them including people who would have unlocked key issues like mental health so so the notion that she didn't spend this much time on this investigation because he refused to cooperate her with her it just doesn't hold together the names were there they had the information they  simply didn't follow they abandoned the investigation at an unreasonable juncture she did testify that she there were people that she tried to reach repeatedly and that she also testified there was at least one person that she  id who refused to talk to her so she did how well so she is doing follow that is what her testimony suggested what was she supposed to do past it at a minimum follow up on the leads that were on her desk in front of her and see where it takes or see where talking to beverly prised or who testified that no one contacted her and would have testified about all of these mental health problems both for mr barbour and for her about his upbringing about poor poor role models see what she said but she didn't do that she called a few people got through to a couple of them and then stopped and the names were there she asked for records and didn't get them and that was the end of it she didn't she didn't follow up as far as the record shows and trial counsel didn't give them to or so at a minimum this is a situation where the information is in front of you it's staring you in the face and you don't do it and she didn't go back to mr barber and say hey you know i tried x or y from your list and that person and that person wouldn't pick up pick up the phone you know what do you want to do she never went back she talked him for two hours which was the lowest amount of her entire career eight months before trial didn't go back it didn't even seem like she was aware that there was a period of time afterwards there was an initial missed trial until the nd trial when she could have continued to do our investigation she just stopped and trial counsel didn't do anything more you there his testimony was   right that's correct the state i don't believe put on any testimony in the rule thirty two hearing so that the aggravating factors are what they are based on what was found in the st instance and i think it's important to remember and doing this really weighing exercise that that those those factors existed and nevertheless mr barber still had one vote for life with everything else in the mix in the there is as in jefferson a plausible explanation that exists for the st time about some of the stuff and this court of course knows that this court and the supreme court that an atrocity aggravator is often found in cases of a number of cases that i had mentioned earlier where both cooper and johnson were ones in which there was an aggravating factor of cold calculated premeditated similarly heinous  you know i think i'd love maples but i recognize that it's unpublished so in terms of published cases i'd probably say cooper is one of the closest ones there was actually quite a lot of mitigation evidence put on in the st instance but the picture changed when more came in there was more there was more that came in and that changed the picture including about depression and suicide that was a case where there was an atrocity aggravator and over the last three way changed it and we think respectfully that's the case here you've got a sentencing order where there are a number of findings that there is at least a reasonable probability in re weighing everything the mitigating finder's findings would have been different the state put on no evidence and the rule thirty two hearing and and when you put two pictures next to each other one of an idyllic childhood and one of a person who broke at the end of a broken life you think that again having already had one vote for life there's a his burden of proving prejudice was reasonable this court can do can conduct the same analysis this court can and should review whether the state courts determination the barbara failed to prove prejudice was reasonable hold of the district or correctly found that it was and affirm the district court's judgment if this court reaches however the deficient performance prong it should find that barbara is mistaken in arguing that at pedestrians does not apply but in the alternative  claim discounts were deficient sales underdone a review and and just turning to denote a review because that may make it simpler but this court this court looks at two things in the context of the penalty phase i claim whether counsel reasonably investigated possible mitigating factors and whether they made a reasonable effort was that mitigating have turning st to their reasonable mitigation investigation was reasonable although they conducted mitigation by mr barber's refusal to cooperate an active obstruction of their investigation and he barbour strategy from the beginning was to receive the death penalty if he was convicted he testified to as much as the wrong and i you know was convicted and i got the death penalty there would be people there to help me appeal my case and then i would have some hope so we certainly agree he did not want to die that that was never the point of this the point of this was a he made a strategic decision have him self that he wanted the death told you so he could get better attorneys says mr krueger to handle his his appeals and so counsel and their mr barber clearly provided the names of people to his counsel and to ms resins why that were not followed up isn't that right there were a few that were the follow up on the end of that failed to get why it was reasonable not to contact the the additional witnesses that he did provide or to obtain any of these records well for two reasons your honor one he gave them certain names and they followed up on as many as they  for so they said talk to our mother elizabeth she talked to a little before her and i did she so she tried to run down these leads just like she tried to run down the lead with his other brother dylan barber she had four different phone numbers for him and she called and she called and she called and she never could get a hold of him or or if she sensed what she was an insertion of the correct information so she was working with his family members she tried to locate people she did the best she could at the time and as for the records i don't know what they're testing but there are a couple of people she could not write he tried and could not run down but she never testified that she couldn't get in touch with anybody else there was no one else he could talk to because of mr parker's lack of cooperation and i write about that but she certainly touched by this she also tried to talk to people who wouldn't talk to her lose that she really wanted to talk to liz ups the victim's daughter who he dated for murdered her mother but liz ups wouldn't talk to or there was another gentleman who wouldn't speak to her as explained in the state's brief so see other could locate people whose name she was given or some of these people wouldn't speak to or as laid out in our brief so were they are there my answer my question is no she never testified that he was an absolute dead end that there were no people she could follow up with and she also important to understand but we're guarding these records is that the only records that were introduced in rule thirty two and this is a document sixteen buoying twenty three these were the ones that were new introduced at the rule thirty two hearing number one barber's records from connecticut hospital in two thousand dealing with his kidney stone problems number two list of five connecticut offenses the he committed three of which were no process number three a c v s pharmacy a prescription for penicillin kind of curious as why that's in the treatment for bursitis in his right knee number six his mother's hospital records from two thousand and seven was number one would have been available at his trial in two thousand and three and number two whereabouts here p d and then finally arrest records f joel barbour and ronald kittredge my friend for the other side talks a lot about the suicide attempts and the mental health problems there are absolutely no mental health records in the state court record so even so and perform when someone commits a crime and this nature though and some it didn't have the extensive criminal record that you might expect didn't capital have some obligation to do a serious mental health investigation to try to figure out what was going on and what mental health evidence might medicate the the aggravation evidence well i mean they hired dr rosenberg and it's important to and forensic psychologist because he thought she was the best medication expert in the state of alabama and it worked before and she did do an evaluation at least for competency models that was evaluation and generally says background psychological issues she didn't see any red flags and she didn't recommend any further investigation and mental health and i guess as goes what about the hiring of d rice it's like we do have testimony that this is the shortest period of time that she's ever spent in her career meeting with the defendant less than two hours your opposing counsel has made much of the  short period of time that she spent on this case she didn't go back to mr carver can you speak to really what appears to be somewhat truncated nature of her investigation certainly just branch  what we have in the record is her testimony and the rule thirty two hearing was that bar mr barber absolutely would not cooperate in giving her contact information and she was particularly interested in getting the names of his collateral collateral witnesses and particularly his friends in alabama and friends and connecticut and also ex wife ex girlfriends and he was adamant that he would not provide them to her that's her sworn rule thirty two dollars circuit court the trial judge took over and began questioning her to confirm that that was the case and dr rose would did have an interesting exchange with the judge and was she said your honor that is why i didn't go back to this wide couldn't do anything more i had these names i didn't have contact information he would not cooperate with me and that's borne out by what everybody else testified to dominic banged the investigator also met with  mr johnson sorry about that in cases like williams and wiggins the supreme court have referred to the american bar association guidelines on death penalty representations and at the time of mr berger's trial the a guidelines provided that quote the investigation regarding penalty should be conducted regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented those were the guidelines that  it's guidelines are binding on anybody but that's not the state's argument the state's argument is not the council's gave up it's that in spite of the fact that mr barbour obstructed them they did persevered they did present they did information to find them and something else needs to be clarified council st barbara spoke about the sisters they were contacted in particular margaret kitteridge and beverly rise to work and his brother glenn barber somebody obtained letters from them and presented them at the penalty phase and every reason to believe is   it's also logical that he did that because mr boynton was in charge of handling the direct examination of the late witnesses and all he says so he did the direct examination of mark barber elizabeth barber and alex trier whereas mr to lead counsel focused all of his efforts on dr rosensweig so that's further evidence that mr boyd's and who we must presume acted reasonably was the one who contacted mr barber sisters and brother plan and obtained those letters and presented those waters at his trial and also alex trier there's no evidence that he was the th person to testify the at the penalty phase he was mr barber's jail minister he testified extensively about powers behavior in jail his christian faith how he never had a single disciplinary in two and a half years and how he was an inspiration and beg the jury recommended death sentence well who contacted him wasn't to mr dr rosenberg they said they didn't so again that that's got to be mr points and he did that but the overall point is that you had four members of the defense team two attorneys dr rosenzweig and mr mcveigh all working hard and despite the obstruction they gathered a result mitigation case and presented it  and just turning very quickly to the many years of presentation that was presented and why it was reasonable mr barbour continues to claim that his counsel presented a slam mehdi hasan evidence and that their entire mitigation case related to his history of drug and especially after his father became ill with cancer they said the devastating effect his execution would have on his family through our lives those testimony that she had already lost one son who was murdered and that she could not bear to lose another son they further humanized him as i just who had no disciplinary season two and a half years and that he wouldn't be a risk if he was and left it up roll that's compelling mitigation evidence dr oz's would also testified about his remorse that he believes that she believed it was genuine  mark barber leave the background as to his substance abuse and then dr rose's work could testify at length of the penalty phase of the trial followed up by that by explaining and by using it's hard even to explain how his substance abuse abuse affected his brain and his behavior and just explained so that he was predisposed to substance abuse and identified members of the family they were lying around drunk everywhere but that there were people on his family who did have some of use is used as well so in short they presented a host of mitigation mitigating factors including his lack of a significant history prior criminal activity which was a statutory mitigating ever been discussed as a strategic decision a sort i don't believe that was addressed judge grant that the rule thirty two hearing i could be mistaken but yeah i don't i didn't think that the wanted to see  alabama court's prejudiced determination you say it was stands at the deference even though it didn't mention the words reasonable probability and other less bottle follow strickland because it cited strickland let me ask you is there any answer it this way it is a short unpublished memorandum opinion and i would agree that it's not the clearest opinion ever written the court did cite prior decisions in reference in the preface and corey and the court did and let me get the language correct it did state and setting for the strict one and worry this issue stated that if it is easier to prose and effectiveness claim on the grounds of lack of sufficient prejudice that course should be followed that in the states you in the case the state court was getting at you know what it meant was reasonable probability of a different outcome  and we would argue that's all the more the case because you know federal habeas courts must presume the state courts know and follow the law and there's there's no no reason to believe from even reading what the cortical appeals that here that it didn't know and understand the law might be a bit of an overstatement but but you know if this court doesn't want to grapple with that issue then the easy way out is to apply to never and that's what we would argue in that way discord doesn't need to we explained our brief this case is controlled by penn holster and holding and that's because just like in those cases the new evidence that issue here is cumulative and large parts and and other parts largely tells the same story more detail version of the same story more better details but does it well look let's look at  there are several categories and we've covered them all in our brief that parental neglect mr barr makes much of the fact that his counsel were ineffective for failing to produce evidence that his parents supposedly neglected him and didn't discipline him a ham enough it's almost the reverse of what this court sees all the time of my parents beat me and physically punish me here it seems to be spare the rod spoil the child would testified that barbour did not receive as much and visual attention from his parents because he was one of seven children she testified that he began abusing alcohol and marijuana to young age  his substance abuse escalated during his teen years that he dropped out of school against his parents vice and that he sold marijuana out of his father's gas station so it would have been easy for the jury to infer that parents were not particularly attentive to him while he was growing up moreover the argument that he was prejudiced by his counsel's failures present evidence of his parents so called neglect is entirely weakened by his testimony at the rule thirty two  dollars hearing james r james barbour testified on his own behalf of the rule thirty two hearing that it family quote had animals and horses swimming pool i had a nice life my father bought us many bikes my childhood was very good i enjoyed it dr seligman testified that barber benefited greatly by having an intact family the barber was not abused in any way or ever discipline has that what the state is relied on is the substance abuse and that is sort of the basis for arguing that any information that come in about mental health issues with a cumulative and while they are certainly related the they are separate as well so we have one or more suicide attempts and we have sent him a history of mental health and that judge grants question do you have a case that suggests that either  trimeter one way or the other or is not obvious upon that the question is more of a factual one in light of the record as i've already mentioned there are no records supporting any problems or mental health the testimony of one of his sisters who said that at some point her mother told her and this it had been years earlier that she came home and saw mr barber putting a gun in his face sister testified that she didn't know if he received  healthcare or anything after that so it's so certain testimony on the part of mr barber and complete hearsay on the part of his sister and there that's it there's nothing to substantiate any anything beyond that and that time and assuming he was he certainly wouldn't have been old enough to understand what was going on there are a couple of alleged and stances about his mother there's no allegation until i heard today about her just being in a chronic catatonic state that's not in the record of the brief and then his sister's there's an allegation that one of them had depression and then and was hospitalized twice in the nine hundred and ninety dollars s mr barber would have been in his thirty's at that point it's kind of hard to believe that thirty something year old man would be deeply impacted and that would be mitigation evidence to have his sister treated for the press and when he was in his thirty's so i would argue judge branch that it's more of a factual question and i would urge this court to review the record and see if much of the allegations about the mental health mental health issues that are raised in the brief  circumstance you know he in light of the fact that he brutally murdered an elderly lady by beating her to death with his his hands and a claw hammer there's just no could do at the time that's false as you said judge prior and it's judge branch indicated by calling me investigation truncated she testified at the rule thirty two that it was not the best she could do at the time that she wished she'd done more the nd point on deficiency is that mr johnson said the sisters were contacted including the one who testified at the rule thirty two dollars at length about mental health issues because somebody got their hands on some on a letter from her beverly ries doris testimony  and sixty four of the rule thirty two hearing was do you remember his trial attorneys i don't remember them no did any of his trial attorneys ever contact you know did investigator mr mcveigh ever contact you know  jimmy's in the time leading up to jimmy's trial did you ever hear from him dr marion rosensweig no that seems pretty categorical to me on prejudice i'd say a couple of things one mr johnson had no good answer to the question about whether the state courts decision applied the wrong standard and was contrary to clearly established law this question should be issued should be analyzed to novo mr johnson emphasized the trial counsel brought out humanizing evidence and about his jail time that's true and mr barber got one vote for life and rahm pia there were five witnesses besieging that the jury not to convict him including his young son that they did it anyway here he got one vote for life and the human evidence doesn't change that the question now is whether with a more complete understanding of how he got here two more people have changed their testimony and i'd like to say quickly a couple of things on the parental neglect and mental health issues that mr johnson h that the protective factors were not protected here because of the dysfunction in his family mental health i just say a couple of things quickly mr johnson pointed out that there were no records that's true but there was also no finding of credit that the  testimony given at the rule thirty two dollars hearing both from dr salic and from mr barber sr was not credible there's no finding whatsoever about that testimony as evidence the evidence is clear the jury and the judge didn't hear it the st time around and finally briefly  your honour's had asked a couple of times about cases and i just want to add two more in the mix one is hardware which was a case where evidence about suicide attempts and alcohol and drug use the court held would have changed the balance  in the aggravating and mitigating factors by giving the jury and the judge a more complete understanding of the defendant and the de bruce case which says that a complete omission of of evidence of the sort of mental health and a abuse is almost always prejudicial it doesn't it doesn't put it in quite those terms but it says look when there's a complete omission of testimony about mental health and abuse and here there was a complete omission of mental health testimony that's usually a problem and i would just close by saying that notwithstanding the questions about cases this is of course a case by case determination in which the court is obligated to reweigh everything together and we respectfully the submit that in doing so mr barber has shown a reasonable probability that two more jurors would have voted to spare his life unless there are further questions i would urge the court to reverse the district court's denial of hey biggest relief thank you counsel for your