record capital counsel was appointed in january two thousand and six were september two thousand and six trial and then your honour's they wait they wait six months to meet their client for the st time they waited nine months until you've  to send letters of introduction experts the lawyer who was responsible for putting on that medication case it's acting hadn't even read the social histories or the institutional records this case that was going to focus in part on future dangerousness and prison conduct and in the midst of this chaos that was brought about by counsel's failure to exercise basic levels of diligence and experts said just before trial three things st we need a continu and looking at this record and learning things about the use of psychotropic drugs that i wasn't even aware of nd i need a social history and rd we need a neurosurgeon examination because i want to rule out that his issues aren't are arising from brain with respect to in particular what was claimed seven in the district work and what chart rd issue for appeal right now the district judges analysis is all of three pages and with respect to the district judge the judge committed to various you know  cases we see and the k in capital capital cases so the jury here was presented with an than that because trial counsel did put on what's probably the most powerful piece of mitigating evidence that they failed to investigate developer present and that's what we know now about freddie elements that he has brain damage in his fr that this brain damage where was that where was that in the record before this most recent iteration i mean they hired three experts that they not none of them ever indicated to the lawyers any concern about brain damage and i recognize that lawyers can't completely abdicate their responsibilities to the experts but what what was it in this record particularly from the expert the experts the should have led the lawyers including the post conviction lawyers i guess which is where this comes up to to somehow understand that they needed to look at this particular issue right and judge he has what we know is the st one of those experts which just the treating physician from the prison he said that he never reviewed any records that mr owens had hat he was medicating mr owens when he needed medication so he wasn't an expert and though in the litigation sense the nd expert is the one who i was talking about before judge schwartz watts who  couple of weeks before trial is the one who told trial counsel get a continuance and we need a neuro psych and then it was that rd expert judge diaz judge brawley with dr brawley who said with regard to the federal  proceedings had i had access to medical records indicating that there was a history of seizures had i known that well they knew the opposing brief on pages and twenty three details of the testimony and part of that testimony went to owens having lifelong problems with brain functions and certain orders like a d d attention deficit disorder so the you're opposing counsel is contending that indeed evidence of of brain damage was was presented and they've quoted so honor and the federal he is proceedings we were able to present the testimony of two doctors who said not based on social history or not based on surmise but as a result of full scan m r i scans and pet scans that they can identify the structural and functioning damage to mr owens frontal lobe this isn't just about you know a difficult childhood this isn't just about a t p and behavioral issues the prosecutor s closing argument that mr owens is an evil person what this evidence would have done is it would have shown as this court found in sterling versus williams there's a cause and effect relationship between these medical deficiencies that mr owens had that were never investigated and never presented it wasn't bad your honor it was broken and the jury never had that information because counsel's asleep at the switch never developed your honor and we know in terms of prejudice here because the undisputed record that was on recommend a full neurological evaluation and where was that i think there was a particular evidence regarding seizures is that in the record that evidence is in the record and dr wood's report your honor but the evidence was originally drawn from south carolina department of correction records that were read and weren't with that that weren't read by the way we say the evidence and is in the record the statement from dr woods in the record but where is the it were the actual medical records the actual medical records would we would be with the south carolina depart so you're relying on the statement from dr once who who looked at the records or is just surmising that there might there might be something in there you want to we're relying on the statement from dr woods that she looked at the records and saw that there was a reference to a history of seizures and the fact that the underlying records are in the record leads me to another point and that's that we were denied an evidentiary hearing in this case your honour's and we can talk about the martinez versus ryan gateway and what the standard here is but the reason the district were denied is that he post conviction review counsel was also in effect i think was also an effect in that we have well i thought ineffectiveness claims really related to to trial and to appeal under fourteen us versus ryan your honor under the south carolina system these claims couldn't have been brought up on direct appeal and there are no martinez talks about it and the difference between elaboration of the state in state court and say well this should have been put here and this should have been put in and everything got you know that back to go on endlessly and the supreme court was concerned about it but this doesn't seem to me to be in the nature of a fundamental alteration because there was evidence of brain damage it was brought in a recording and and indeed a great deal  consideration and in fact the state courts treated this individual very fairly they reverse on the st two  sometimes see these an effective assistance of counsel claim which is a great deal of monday morning quarterbacking and that's and you know and that's a lot of what's going in here there's a comprehensive mitigation case that was put on part of age concern brain disorders and you know if you're something this comprehensive is inadequate  say the way the intellectual disability but this point is noted that it explains cause and effect in a way that other you know social history or childhood history mitigation evidence does not and at the trial court as to whether or not this is a new claim or whether it's an elaboration there was no evidence developed investigated were presented that there was this medical problem with mr owens it hurts and so mr williams you're making a very interesting argument but it seems to go mostly to performance of counsel and i haven't heard too much of your prejudice analysis you know we have a lot of evidence in this case we have evidence that dr brawley who you have referenced has said that  that mr owens performed pretty well on memory tests that she gave him dr schwartz watts was saying that the some of the medications that you're referencing were given even though they're very serious medications that they were given in his case i think primarily for impulse control weren't they so where is the prejudice you know we have here i mean the glaring fact that he killed his cellmate you know  terms of future dangerousness how do we how do we factor what you're talking about with counsel's performance and translated into prejudice sufficient to meet the standard necessary in the event  given the extreme evidence of of his conduct while in prison and i'd say on that judge king because of the nature of the information that wasn't investigated that is a full scale neuropsychological exam that actually shows medically as a matter of science not as a matter of social history not as a matter of what adversity he went through as a child but just as a matter of objective science that he had these issues that impeded his impulse control so you're saying it's perceived prejudicial then essentially aren't you it's not per se prejudicial your honor but as i said this court has recognized in sterling versus williams in the context of fetal alcohol syndrome that this word of medical evidence explains all has an effect in a way that social history does not the a b a guidelines and other supreme court cases like terry williams for example have recognized that medical that's a brain damage not just talking about it and i don't want to say where i said i'm talking about in this case given the other evidence point us to person prejudice since you agree it's not per se that's right rhonda what is the other evidence of prejudice the other evidence is had this information had counsel been able to go before that sentencing jury with scans of mr owens brain  he's not bad he's not evil he's broken and that's why he's done this then that would have been information that was withheld from the jury hear that because it was withheld interfered with the adversarial process and undermines the reliability it's still sounds like a per se case you know i guess addressing the context of what the evidence was an aggravation including the particular that very very horrific killing in the jail cell but i think if it sounds like a proceed case i should be a little bit more clear there was no riddick advert of aggravating evidence that was presented at the sentencing the social history evidence that was in medication might not have explained it in a way that the medical evidence does your honor and that's what i'm saying is with this jury  i think you have a difficult road both on performance and prejudice but why wouldn't something like the his his overall record which is hands and this something like murdering a cellmate while awaiting trial why wouldn't that go best got to be relevant it comes to whether there's a reasonable probability  possibility a reasonable probability that the result would have been different and i think the answer there your honor is because this medical evidence unlike social history evidence rather evidence isn't seeking to excuse w of these sorts of proceedings by elaborating claims not fundamentally altering but by a lab rating claims this could have been brought in and this could have been brought in and it's always possible always to think of some piece of evidence that should have been brought in and you try to make it seem as if fact from please change the nature of the case and that's hard for me to believe given all the evidence both as to brain dysfunction and childhood problems and everything that the fact that there's a fundamental alteration and what was before the jury but it any right you have time for rebuttal but i brutally very brutally and those details he gave us in his own confession and that's coming in no matter what now the conversations morning talked a little bit about the case in aggravation the j j records now in the st issue before this court mistrial was a suggesting now that there was a sexual assault that should have been brought out that counsel was ineffective in that mitigation case because they didn't find that however this was not a clean slate case we had six different lawyers three different medication relieved that he was out of a victim of a designer state so that's a tough that's a tough counsel and now was when you start digging into his problems it into his past you uncover more and more evidence that you wouldn't want the childhood into is behavior while in prison it's it's sort of hard to do that surgically because it's intertwined and interconnected with some very brutal behavior and it's it's not a thing that council would want to dwell on which is a this is what's this is what was hard about the case is it more you look backwards and try to explain things because that's one of the things that gives me a little bit pause on this in particular what your colleague mentioned about dr brawley case reassessment of the evidence that he indicated that he would have suggested neuro imaging if he had been made aware of these records of seizures and other medical issues while mr and mr owens prison records so why isn't that enough to raise a concern the fact that that evidence it appears to have been available but was never considered by the the fence team particularly since the expert now says that had he been made aware that he would have suggested the type of testing that your opposing counsel you take issue with the premise that there was a record or evidence of seizures is that your point position is correct is a false premise that starts from that and also it doesn't invalidate any of the testing that d brawley did for this particular proceeding it doesn't invalidate it at most if you take that in the light most favorable to mr owens she might have said i would like another test that doesn't mean that any of her testing is wrong faults or incorrect anyway so you still get back to what was presented to the jury and dr brawley did not find significant problems with his functioning some limitation learning disability absolutely but not this idea that there is a portion of the brain that is so damage that he's not responsible but i would lie take a few minutes to talk a little bit more about the prejudice in that particular case because we have talked about what has happened what his actions but we also need to talk about what he's done in prison that was positive that they tried to bring out and that is that he could teach others to read that he had to learn languages himself that he had increased his i q some when we talk about brain damage we also have to consider that that information is also before the jury so that is his level of functioning now that there are very own unique cases out there were portions of the brain are removed but someone still functions correctly his functioning was tested and that information has never been shown to be invalid this is what you're saying is that putting on the evidence of brain damage would have a strategic decision that would have presented consistent case before the jury in th some evidence that was suggest some damage that was from dr evans in a prior proceeding and the district court was swayed to certain extent that they didn't use that particular evidence to try to go into some kind of brain damage that it wasn't accepted as being particularly medicating because there was a death sentence that arose from that i also want to go back to what counsel said in the p c r hearing and that is that he didn't want to use because you did have information from your own experts who had tested and those tests are valid that he was doing better that he was learning he had a decent i q he was teaching other people in prison how to read he was reading himself he had an increase ability so all of this goes together in the district were considered that and saying this is not a substantial point because you had to get a substantial climb to get to a martinez excuse but the other thing that the district court found was very important was that none of the doctors had requested neuro imaging there's nothing in here in this record in the martinez presentation that suggests that had an image come back with a certain quality are certain deficit that the new diagnosis would be made that's not there and i want to go back a little bit and talk about the difference between williams versus sterling and this case and one of the big differences is that they did have these doctors and williams versus sterling you had a specific condition the fetal alcohol syndrome recommendations of the three experts that's right because council should take some information from his experts and make his decision that's working hand in glove that's not an abdication of his responsibility requests that imaging but i would go one step further and say there's nothing in the record that shows that anything was wrong with the testing that they get or that some image would be person a prejudice that has never been accepted and some of these types of reports have come in and other cases in south carolina and that's the way that it has been addressed that these are not per se films per se approaches films when you find  a doctor that says oh i think this area has less volume or this area is dense or this area is damaged in some point medically speaking you still have to go to function function is the major part of brain damage that you want to get to if that brain damage does affect functioning then that's a stronger case that hasn't been shown here either because again dr brawley did the accepted ne psychological testing that goes pacifically to function concern that there wasn't enough time but again we're not writing on a clean slate and counsel very much i had access to the prior proceedings and transcripts that he had access to prior coun spots he used that he also brought in his new experts because he wanted a bit of a different case already been sentenced to death twice so we wanted a new presentation but he didn't just throw everything out he still put every so often and in that in that seminal decision justice o'connor makes a point that council has latitude in hell they put on a case and that's a thread that goes all the way through her decision and that is the law to rehire counsel to begin with to exercise judgment would have recommended this particular tell us but then there was an additional problem and that is if you put on this evidence of brain dysfunction and you put on the air and you put that lays out a salve the things that you've talked about which are the teaching that he's doing and and the level at which he's functioning all of a sudden you get an inconsistent case and the prosecution is going to make mincemeat of that in closing argument and so kelso says we've got a task of maintaining our credibility with the jury on this kind of thing and we can run into our selves and meet ourselves going and coming you may disagree with that but if you go back toward justice o'connor was saying in that opinion this is exactly the kind of judgment that either this is something that counsel said at the c r i wanted to put on a different kind of case and i wanted consistency i didn't want smoking mares that suggestion of smoke and mirrors yes sir that would be correct that would be absolutely correct and you do have counsel on an occasion exercising their professional judgment and that includes investigation has to be reasonable one thing that comes out i think in a lot of the capital cases is this idea about medication and is it complete is it complete mitigation that's not the test the th and then the test is whether councils investigation was reasonable which includes some of those decisions where to go how to go and want to present and one of the biggest problems with trying to think of medication as this concrete set that from a nation is that impossible to determine what is in that concrete set of information that's impossible because as judge wilkinson points out there are different ways to try to free cases different things introducing or or or also introducing the aggravating evidence because if you take the premises that that have brain is damaged it's not a choice it's the damaged brain then you have made that person per se dangerous that's not going to help the case for life so there are a lot of of considerations that council has to make a determination on and going  mr williams began his argument with sort of a description of how it appeared that the council and its team was a bit this organize they sort of had some trouble in the briefs of justice as well as some dissension in the ranks and a bit of dysfunction maybe they were rushed for time they had to ask for a continuance in order to get additional information together and i think it's fair to say that the medication case that was presented at this trial was perhaps not as well to well up to that as some of the other earlier proceedings but of course that's not the test but how are we supposed to assess that kind of sort of  evidence to the extent it exists in the record about this sort of this organization and and just not coming together as a team and i would suggest that when we look at the emails and there are references to the emails from  godfrey to other members of the team we look at that we have to look at the end result and we have to look at the p c r testimony in other words we have to look at it in context and in context i would suggest that shows the opposite of what mr o argues it shows council was very active that he was corralling information that he was managing his experts and at the end of the day when he presented his hamrick he said that she did a good job and one reason he wanted to keep her even though he would have i think used the term pull the plug if she had not come up to speed before trial as far as preparation and talking to him he wanted her there because she had so much information she had worked this case before and she knew it and bottom line she did a good job it is a different presentation it is different in part because that is another strategic decision they wanted a different case two other death sentences had already been handed down and this is the type of evidence that goes to the last point i believe i touched previously very briefly this other expert to presented that ms hammock should not have been presented in this particular proceeding that perhaps someone like dr garber arena should have been but this is not particularly difficult information to understand as the united states supreme when you get your hours now you're in my my colleague's argument judge wilkinson had mentioned that this case seems like just the sort of strategic decisions the triple and endorsers but strickland assumes that when a lawyer is making those strategic decisions that he's fully apprised of the facts and this court's case and him for example said that counsel is charged with being familiar with documents that are readily available that are necessary for his client's case the record on this case which comes to this court on summary judgment is undisputed the trial counsel here had never reviewed the institutional records that said there was a history of seizures and in case there's any dispute about this judge diaz i have the records you have in the record here the expert the expert report which mentions history of seizures i don't think there was it there should be any dispute that these present records which would be available in an evidentiary hearing if it's granted in this case say history of seizures this isn't just a question of the doctor sure my saying that from the medications that mr owens was prescribed but it gets to a larger point in order for this court to deny mr owens his claims it would have to say that this case isn't even substantial and what you've heard in south carolina is argument was that counsel was looking for a different kind of case it had a different kind of case available to it were all of the factual predicates would have been available from the record with just the basic diligence of reviewing his client's institutional records hiring experts in time for them to give the proper opinion and this different case it's not per se mitigation but what judge wilkinson was saying about having to be surgical with a client like this where there's so much on both sides of the issue that if you open the door to something you might be concerned about something else the different kind of cases to say not that we're going to balance the bad things he's done with the good that he's done in prison all our all our saying was that there was luminous evidence put on there would have allowed it to be sworn general had he or she been so inclined to recommend life that's all it takes is one sympathetic figure who had essentially been turned to a life of violence by a perfectly horrific upbringing and for council to concentrate on the violence and disorder and abuse of his childhood and to have that be the point of emphasis as opposed to brain dysfunction on that childhood and that seemed to me to be a valid point of emphasis given the fact that they had three experts they didn't recommend the three experts who didn't recommend year over imaging you can expect a lawyer to simply if they had overridden the recommendations of the experts out would have probably presented another difficulty and there was this problem of consistency in introducing evidence of brain dysfunction when there's a whole awful lot of evidence that he's functioning at a fairly high level and the jury you know your kid because one thing a lawyer can do is you can lose credibility with the jury and that is rare and the evidence that you're talking about it ran that risk your honor there was no overriding the decisions of the experts here i heard who was hired not given institutional records and who has said in undisputed testimony that comes up to this court on summary judgment against us that had i known about these documents that were readily available i would have ordered full neuro psych and we know what the results of that neuro psych would have been because we had them in the federal hate us proceeding this wasn't a strategic choice of judging all i can say is there is simply no proceeding on this green earth and you can see that you can look at a record you can always say always councils should have done this or council should done that whatever we review things in retrospect we can think you have to put yourself in the shoes of the people who were there at the time and confronted with the case and frankly as the p c r court found and as the district court found in a very thorough opinion these folks did a creditable job and even if you get past the performance problem of things it's difficult to deal with a reasonable probability test on prejudice  because there's lots of evidence that indicates this individual could be a continuing threat because you never know when there's going to be a recurrence of something like happened with his cellmate while he was awaiting trial so there's a problem with the performance and the prejudice prong under twenty to fifty four days and i see my red light is on mag respond briefly or are you sure so i agree with you that there's always a problem with looking backwards but that's why the supreme court and this court has said minimum standards for the performance of can't and in winston for example this court said two things that are relevant here you need to be familiar with the readily available records that are necessary for your case and counsel here will let me ask about that so let's assume that what you just said earlier was correct then i'll have to go back and look that there was evidence of seizure and dr brawley says had i known that i would have run these tests but of course he wasn't me he he they ran a battery of tests on your client that there were three doctors involved here and none of it pointed to this the necessary neuroimaging of the brain are you saying that the only logical than most compelling evidence that would have led a doctor to do this test where it was the evidence of brain seizures that what would have ordered neuro psych and that gets to the point that i made about hearing that your honor mr rhodes has never had an evidentiary hearing on these issues on whether or not there was there was deficient performance or whether or not there was prejudice it's coming up to this court on s judgment and the district court had to rule that there wasn't even a substantial one because the only way to avoid grappling with some disputed evidence and that's why we've asked the c o a standard substantial claim if that is the same as the martinez versus right standard and that's you've taken with this case thank you just like to thank you runners will come down greet counsel they will move into our next case