ok when you ready a place to court james thompson on behalf of appellant petitioner david ferrer there are three issues that were raised with respect to this certificate of appeal ability in the case there really are kind of related i want to go to the last claim that's raised in the briefing and that's the you know effective assistance of counsel for failure to investigate and to present a mental state offense and then depending upon what time is available i may turn to the other two clerk of the clock in this case truck counsel who admitted that he in failing to pursue a mental state offense really did nothing in that regard while there was a doctor that was appointed for the purpose of the valuation of competency there was no pursuit whatsoever with respect to the hiring of any mental health experts or even the evaluation of any of the records that were in the possession of  counsel that were provided in discovery which included mr fear of school records mr fear of psychological records from school at that time could you think a step back so i found this argument very confusing  what was the purpose what would have been the purpose of the mental state defense in the context of this particular trial and and what he was attempting to accomplish with it if it had  alessi to say that the jury's finding but he didn't have the intent so what it what does that mean he didn't have the intent to kill which because this case was tried during what's referred to as the carlos window that time in which the jury was actually required make a determination that the special circumstance of there being an intent to kill mr fear would not have been convicted of the special circumstance and so what's the reasoning  the doctor i guess is two points there one the factual promise that the court is talking about here if we go down that path is refuted by the other the other claims that we raised with respect the fact that the path ologists in this case testimony was invalid and we had done so then i mean the jury said he was the shooter there were two shots and the pathologist which is arguing at which order were the shots which i'm just not sure how that makes a shooting at the time of the crime mr fear was in an altered state of consciousness which parallels the case of genes versus woodford this case almost runs exactly like the jennings case in terms of the testimony that was provided in terms of the degree of the act of the individual and mr janes casey actually killed two individuals in the crimes were much more intentional if you will that there were some rules at the time about an expert could testify just i'm just having so much trouble understanding that well as i said because mr farrow's intellectual disability because the fact that he was intoxicated the time on here when in a drink two bottles of wine that day because of the other medications it's because of the other factors in his background with respect to post traumatic stress disorder another thing dr jackman comes up with after his psychiatric evaluation and after the  neuropsychological evaluation by dr froemming that he did not have the intent to kill that he is he was in an altered state of consciousness at the time of the shooting so regardless of whether he was shot in the head regardless of whether he shot in the heart or some other place he did not have at that point in time the intent to kill you know diminished capacity but what intent did he have he had the intent to rob and now would that would provide a felony murder for first degree judge report and as i recall hunter said the same thing they were both at the chest yes it may or may not not because difference because the witnesses say execution style that is to say that when the victim was on the ground whoever the shooter was leaned over to him put the gun to him and shot him execution style but i did so it may or may not did make a difference whether it's head or chest but i want to make sure that i mean i agree and i wasn't trying to correct the court i just was going this trial says that it doesn't matter whether defendant wants a particular defense or not you have a duty to investigate whether or not there is a mental state offense and then you have a duty to present that soon the defendant and then at that point time some decision can be made but you still have the duty and in jennings the court specifically health that because of the standard of care that missing go provides jennings which parallels this case and a hard spot on this one i think the defense is going to be hard to sustain if the vents as i wasn't there but if you have eyewitness testimony as to never the shooter was that he shot once the victim sam falls to the ground after he's on the ground the shooter leans over and basically with the muzzle of the gun against the victim shoots him again to convince a jury that there was no intent to kill boy that's a tough one but that's again that's exactly the the fact pattern except that there were more individuals that were harmed in jennings and this court overruled the conviction that it was upheld by the district court because of the fact that there was a failure to investigate the mental state defense so that that's the segue from my question are you saying that a defense lawyer has an obligation every case to conduct such an examination because in this case there wasn't evidence that the lawyer had that there was a need for an examination that he seemed to be functioning in fact mr maurice was in the trick bag in another way too because the relationship with the client was so wobbly he'd been through three lawyers and he finally got to mr morse and the defendant was unhappy half the time and satisfied the other half so he was having to hew the line of the defense that the defendant wanted you have an obligation to do that but as i read the record there wasn't the kind of evidence that would cause a reasonable defense lawyer at least an effective defense lawyer to say my goodness we have a mental capacity problem and in the facts of this case so if there's no evidence coming into the trial that that's warranted are you saying there's still a duty to do that now but there's plenty of evidence now as this case was was full of evidence that learned mr morris which is why when when we showed mr morris the records that he had received from the district attorney in discovery he said in signed a declaration saying you're correct i should have reviewed those documents i didn't review those documents and those documents alerted me to the fact that i should have pursued that defense the two other counsel that represented mr fierro before mr morris both told mr morris that one mr fear oh it's very slow and too you know must hire slow mentally yet you must hire a mental way ask him or give him any of the records that mr morris had in his possession those records showed that he was intellectually disabled that he had three different psychological reports that were contained in the school records that showed that he could not function cognitively that he was slow educationally wise and slow mentally and that there was use drugs that were found in the car at the time of the arrest mr farrow was addicted to drugs at the time that mr fear used to drink two bottles of wine that day was high on heroin that that day was going to happen after all had enough intent to do the robbery but not robberies yet is asking for money so whatever his competency level was he was competent enough to have the intent to do the robbery but not that's not the murder his capacity was such that he had the ability to form the intent to do the robbery he did not have the capacity to form the intent to commit a special circumstance to intent to kill and that triggers a different stuff so there's also there's all that although given that the death penalty is off the table yes the special circumstances also sounds off the table no well it isn't and it isn't i mean he's now got l wop instead of twenty five to life well that's the difference between seen daylight and not well in california i think there are outlined in the jennings case or in the other cases the jennings cites jennings is i must this continued say jennings controls this outcome it's this circuit's case and he controls because the and presented his argument this case but in this case the critical matter is this is there any chance that a jury who sees mr pirro as having the mental capacity to that he knew that mrs alessi had the money and she kept it in her purse because and he tries to enter the driver side door with the keys so unsuccessfully goes wrong to the passenger side door he demands the money from  alessi she hands him the money and it looks like that's about a thousand dollars in cash but there's also a number of checks and some other materials and in her purse he says he grabs the purse and leaves so he's demonstrated a pretty good awareness of the circumstances he goes to the back of the car and i know opposing counsel is argue that it's not clear that mr farrell was the shooter the jury certainly found that to be clear that he was the shooter in the case the strong evidence from the witnesses is that he was the shooter in the case that is he was dressed like the shooter and mr senzo seem to recognize him as the shooter  his behavior in the shooting showed an awareness of the circumstances that is he's got a gun he's engaged in a robbery he's doing away with the only opposition to the robbery and both of the shots a fatal even if both in the chest both are fatal california law reasonably are california courts reason we've expressed that you can infer intent to kill from the nature of the killing that is the weapon a gun close range location of the shots so the low and location number and location of the shots i would add that i would agree that the number of shots seems to emphasize his intention was to kill little likelihood of finding no intent to kill now dr jackman says i actually i read dr jackson is saying that he was insane at the time of the trial not simply that are insane at the time of the crime not simply that he couldn't consume a great deal of wine that he was high or withdrawing from from heroin administration that seems to be pure speculation from the record so far as i can see if that is on the other hand what the record does show clearly is that shortly after the quell a few months after the crime he talks to dr homicide and he says to dr hammad yes i've used heroin since i was fifteen years old but infrequently and i was never addicted and there's every reason to believe that he told his lawyer the exact same thing at the same time or that the lawyer had no other information was regarding drug use on the day of the crime other than what mr farrel had told to dr home that in that circumstance it is a stretch to say that the defense counsel should have presented a defense  of inability to form the it the intent to kill it was that it was a weak defense it was incomplete consistent with the desire defense of the defense counsel and it was inconsistent with what that mr morris conceded that he should have had that theory developed better developed i how do you respond to that that you've got sort of an admission against interest by the lawyer in an effective assistance case that we can see that mr morris was troubled by the outcome in this case from his discussions with the trial judge both before the sentencing phase began and afterwards but well mr morris  also can be seen to have wanted to bend over hard to help his client aboard the death penalty he said in that same declaration eight years later that his client that his client was incompetent to stand trial because he was unable to cooperate with his lawyer twice in the record however mr morse told the trial judge that i'm doing ok with this client he is cooperating with me we're discussing things i would have preferred that he put that he would allow me to have used a slightly different defense that is i think he wanted his client to get on the witness stand and say yes i was part of this robbery but i was not the shooter and i didn't intend anyone to d because of the existing california law at the time the first in case he was unable to do that because at the end he was practically unable to do it as well because mr in order to do that  done he's never admitted guilt for the robbery ok got it for any of it now so so so the explanation for mr morris falling on his sword as we know really consisted only a two hour interview the guy's clearly slow we get fairly well established i don't think est challenges they just got a low i q the numbers range in the seventy's to low eight assistance to the lawyer in fact is going to mess up the lawyer because going he's going to insist upon saying i wasn't there when the evidence that he was there is fairly strong including the fact that his wife has the victims while out so that's police so let's say that's true that he's giving evidence of being incompetent to assist in his defense what is the defense lawyer supposed to do under that circumstance i did and that is get the opinion and get an exam and try to work with the guy well i think mr morris did what was appropriate in the circumstance although i would my question is this one is actually more direct so much us but directly actual incompetency yes one of the the case this case is troubling because of the intellectual disability aspect of it without question i mean i think about others all of that we've got that problem it should bother people and it but and that's the that's in essence the reason for afghans that is so the desire to be very careful to avoid the wrongful that means that anybody who's that disabled intellectually is never guilty because you can't assist in your trying your trial yes or a crime got there so the question is what was he able to cooperate and assist and and the fact the fact his insistence looks difficult give is that he was with three defense lawyers over the course of the prosecution three different defense lawyers not one of them then expressed a doubt as to his competence mr morris had what appeared to be an a cute or to observe an acute circumstance when when he said mr farrow was seem to be more distrustful and was behaving in an unusual way that's not described further in the but that's an acute circumstance that happened after he had been seeing him for several months or he'd been his lawyer for several months and he's and then he said i better get i have a suspicion not a doubt but a suspicion in the investigated the suspicion we have three asked him to are suggested that he get an evaluation and this would be a different circumstance i believe if i were here defending the death penalty and arguing that mr morse is preparation for a mitigation trial was adequate but i think it's preparation on the on the question of co was adequate but if i could add not only did not one any of those three lawyers at the time expressed a doubt as to confidence but in their declarations eight years later when they had every motive to do what mr morris did and that is second guess their behavior in the trial not one of them says that they excess expect suspected a problem with competence so when the problems are  mommy's start this question it's often obvious to the trial judge whether there's a competency issue i saw was there anything in the record here that showed that it caught the attention of the trial judge and was addressed that there marston motions during which the judge had a chance to question him about why he wanted a different lawyer and what he saw was that the mr farrel was distrustful of the public defender's office because as the judge admitted he'd been done wrong that is the he had quickly cycled through three separate public defenders and that gave rise to his concern and his cause for disrupt distrust but in each of those m hearings conducted with them mr farrel was clearly was able to describe his desire i wanted different lawyer and clearly able to say i want a private lawyer i don't want someone from the public defender's office said i don't want somebody paid for by the state exactly your honor i understand he was paid for by the county but that's no one yes and on that and the state would have paid for his private lawyer as well but but but there was plenty of interaction and then he testified at trial mr pirro testified at trial and he explained a number of things that he's was a loving father he wanted to help his wife raise their daughters  the record shows made the decisions about not calling them all the way round up calling them at his death penalty hearing right yes just there was a huge a marston discussion before the penalty phase days yes your honor and at that discussion mr moore said he doesn't want to present any mitigating evidence because he doesn't want to burden his family which is not it which doesn't seem to me to be irrational but he changed his mind and eventually his family members did testify so i think the it is difficult no doubt he was slow there can be no question that he was slow but if there's a difference between being slow and being incompetent mr fierro looks like one of those individuals one of those many individuals who could have been who was in fact intellectually disabled but competent to stand trial thank you thank you process procedural is whether the court was alert to the facts that what of of that that is not as strong nearly as the substantive due process sudden a due process is based upon a lifelong intellectual disability mr morris should have raised those issues with dr ahmed he did not doctor high med came back with report based on a two hour interview said that he was confident he did not have that information in the declaration trial counsel did and i and i take offense to this falling on his sword mr morris was a respected public defender in riverside county that it tried cases in that county for some thirty years he recognized that due to the difficulties in the case and the shifting of the lawyers in the him finally getting on in this case and he admitted his caseload was such that he was not able to devote his time to this case that he then when we presented in that evidence he felt horrible about what had happened and then he wrote not falling on the sword but telling the truth the status of the case investigation did not afford me the opportunity to provide dr him and with records that i would normally want reviewed by a mental health professional i did not have in my position in the custody records including records from the riverside county jail employment records juvenile court records or the multitude of documents the noon tourney should be a emble in preparation for a penalty phase nor did i provide dr who met with mr fear or school records law enforcement reports regarding mr fearless drug use or the court records from people versus fear of me that i  effect we're not challenging that i think that that's a different issue he says why didn't do it but in the end he says in formulating the defense a trial i did not consult any milk no health professionals for the purpose of as mr fear was mental state at the time of the crime i was aware that mr pirro had a history of drug abuse but i did not enter take any investigation to determine whether his drug use on the day of the crime affected his billy b to form the mental states for the charge crimes my failure to present a mental health defense a trial was not a tactical informed decision after reviewing the declarations provided be mime provided me by mr peers current counsel i am convinced the presentation of a mental health defense a trial would have been warranted that is not falling on the sword in the last thing i would like to read is the quote from jennings this is that page ten sixteen to ninety f through six we find that even in one nine hundred eighty three the information the trial counsel acknowledges he possessed would have put a reasonable attorney on node is that he needed to investigate mental health and drug related issues more thoroughly when defending a client against the triage of first degree capital murder for which raising the reasonable doubt as to intent could be crucial we also hope that the district court clearly erred in finding mr  iver made a tactical decision not to conduct any and any investigation into possible mental defenses is within the realm of possibility consistent with hendrix that it would not have been in effect of to make a tactical decision to have a mental defense had mr all over performed a thorough investigation in consult with his client but mr all over did not make such an informed strategic choice because he settled on a