that it is critically important that capital counsel construct a persuasive narrative in support of the case for life not just presenting a catalogue of seemingly mitigating factors claim seven in our case which is a martinez claim relates to the fact that the mitigation case in this in mr sigman sentencing hearing involved st of all an adequate investigation by his attorneys throughout the record from both the trial attorneys and the witnesses that were later found during the martinez investigation it is clear they either did not locate witnesses when the witnesses were available they did not interview them and had little idea what they would say or should have said when they were at the sentencing hearing some of the interviews took place in the hallway outside the courtroom some of them took place not at all what they missed was important evidence that would have started that brad sigman was six years old he would step in front of his mother and take a beating that his dad intended for her as his life progressed at the age of fifteen he would go to work work rd shift get off work and get a high school to support the family his father was not supporting the victims grandson was willing to testify at the time that brad sigman was like a father to him more of a father than his biological father there was a pentecostal preacher willing to testify that not only did he know the victims of this crime but that he had gone in he had met with brad segment and he had seen real sincere remorse there was a found at the trial court level and then at the p c r court level both p c r attorneys saying that they were unaware of this now the dents the one part one attorney says that there was an investigator but then it fell on the other attorney is kind of responsibility for that then certainly apologize to the court but i think that because we've raised it as a martinez claim and clearly have rains the fact that this never once was readily available until the martinez investigation that it meets the martinez think so all of the martinez plans i think are substantial and more relief and i think the review that you look at is very similar to the review that gets us to this court this is the granting of a certificate of appeal ability is the same standard you would use to and it's the strongest because it is then the focus of the supreme court in the focus of this court looking at capital case that's number seven that has been the strongest claim because this court has repeatedly looked at the fact that just presenting some geisha and doing some mitigation investigation is not enough in a capital case so i think that we have presented compelling record evidence that the narrative the persuasive narrative that should've been not cumulative and that's what's important about when you look at this presentation of mitigation evidence what you had was sort of a shoot from the hip kind of mitigation that wiggins can do that says you don't get to just put it out there and then we'll say ok you've got enough witnesses that's going to enough there wasn't any nature to how this went you essentially had i mean one witness was excluded several witnesses don't seem to serve any mitigation purpose the bulk of it was the guards from the jail saying he's been well behaved in jail but for example his father was an experienced south carolina apartment of corrections explorer not experiment but employee who they never asked about department corrections in fact that you can tell the trial counsel is very surprised when he finds out that's where he worked that they put up family members who don't tell anything of this history of this early exposure to violence and the sense of responsibility in this evolution into a peaceful man who became like a father for the very victims grants there are there is no evidence from dr martin who sees him repeatedly in the jail who can say that he suffers from a major mental illness and a major mental illness depression that is so important now that every principal in america is on watch for depression and children because of the dangers that it presents how does one determine how much mitigating evidence in terms of relief there's a couple answers that wigan's tells us the answer in this court's opinion more recently in williams tells us the answer it it's not whether the idea is not whether there's enough there's the idea of do we nee the doctor that was treating him and in fact the doctor the string and they just simply didn't have any mechanism to get him to court they never told him to come to court they didn't ask for a subpoena they never asked for a deposition he went on vacation while a capital trial was going on and the judge is clearly willing to make him come back and they're just saying no never mind so i think that your question about whether there is enough there wasn't enough to start with here they did not present the type of persuasive near that you have to present when a man faces death the state's argument is apparent from closing argument it's a common argument from this listener there are mean and evil people who live among us and they should not live among us and he won't what is it you want us to do and i think that the granting of the certificate of appeal ability at least establishes the same things that would make it a substantial claim bring it to this court on appeal but we are not here about his guilt or innocence we're certainly here about his life and that is that is what we ask and again i had just to make sure i'm fully answering your question judge when that that i understand the court's concern but that was the same concern the williams case earlier this year that that a highly experienced team of capital lawyers who did an outstanding investigation had missed a critical piece of evidence and they had missed it because they didn't properly investigate it we have on the spectrum closer to the wickens issue here where these lawyers repeatedly say that we didn't do these things we didn't do these interviews we didn't talk to these witnesses we didn't understand the evidence that was going in one of the procedurally preserved claims is the prison condition evidence where it's long been held in south carolina that we do not go into general prison conditions throughout the litigation the problem has been that they didn't object to the state bringing that up in this this is issue issue one  and they didn't bring that up because they had opened the door to it when you look at the record evidence from the trial attorneys they had no idea they they did and they opened the door to it because they didn't know the law so the difference between this and for example a later stage they didn't know not to open the door and that's that's what has been perplexing about this case is that the fallback position from the court since then has been lifting open the door they didn't have grounds to object to but from an ineffective assistance of counsel standard they should have never opened that door and they could have done what they were trying to do without opening that door i think they were very candid in their in this is deposition testimony in the record where they both say we just didn't know that was the law and that was not know that you argued it was error in opening the door i thought the argument you made was  basically the substance of the response the state's response and the door was in fact open and that's what the court included so that's my argument that that was improper or i don't think you were in the record below or in your brief you challenge the open in the door itself was an error in my times not run out if i can answer your question that was brought up as the defense to our claim by the state and in the reply brief we argued that's no to establish this cost excuse the default now that is what happened here we went into martinez analysis and the district court found that the claims were not substantial this is not about determining the the matter of these affidavits whatever is presented in these affidavits this is about determining whether if taking that information as true would you be able to make out a claim of ineffective assistance of trial counsel that's the way the court analyzed it and that is correct decision to call them isn't that deficient performance no your honor because it's the type of klein and when you cut off investigation and that's what the district court was very careful to look at this deemed guilty it's a sentencing proceeding yes or their only goal is to save his life yes or no then they're in these are going about mitigating evidence that they didn't know about or didn't use it when asked i didn't mean to interrupt also tell me how does it tactically help a friend who's facing life in prison that death penalty to cut off witnesses of the nature of the testimony that the the strickland claim is not exactly what they did the strickland claim is what did they do and was it reasonable representation and that's why it's so important to go back to the nature of this particular client was background missed absolutely not we have the clinical social worker ms ferguson testifying not only that she had interviewed view most of the same witnesses some multiple times especially ms wooten who gave the information about the intervention  areas were investigating and they were just investigated by counsel picking up the phone and asking one person counsel had experts who came in to interview and elicit the kind of her permission to show not just a general background but a very specific background and more than that patterns within that background to explain how the defendant got to where he was now if some of that information was not given to the expert is the expert ineffective or is the counsel in effect or did the witness just not give us that counsel cannot be found in effect when that information did not come to him and he has reasonably tak determine credibility this was considered under rule fifty six dollars and south carolina we do a motion for summary judgment that's what our response was to mr segment relying on  the district court judge goes over how he is reviewing this information and he says i can't why it i can't my credibility determinations but if i take all of your informational of your assertions as true you still have to make out substantial claim of any fact of assistance a trial counsel and that means both deficient performance as we just discussed a few moments ago and prejudice and strickland tells us you have to reweigh that this and that's why you go back into the record this is the kind of information counsel looked for this is the kind of information counsel retained experts to look for this is the kind of information that counsel did present i didn't have this now there's been much in the hoopla said about our suggestion that it suspect well respectfully it is suspect that's not impugning the integrity of any attorney they could be that the witnesses did not have that information that time  certain cases it could be information that they did not want to disclose so they concealed it it could be that a client interferes at some point but that's not what we're looking at we're not looking to determine the truthfulness of that information in the in the affidavit i don't want to point out another there's nothing that counts that counts against guilt there's nothing that even touches an aggravating circumstance that would make an individual death eligible and there's no diagnosis that was missed and that's what we had earlier this year with the williams case we had a specific diagnosis of f nothing like this is background it is highly medicating absolutely any background information is something that counsel for and that's what counsel did here that's why counsel was not decision counsel was well aware that he needed to look for background information and he got the help that he was supposed to experienced social workers to help him uncover that and to present it so you know i where you have a long list of witnesses and they can go on and all the kelso can make a determination well too much is too much you can have him of the evidence you can have all kinds of evidence what makes this somewhat different  sand as definitive but at least on the front end of it is this is not a case where it appears as a strategic decision not to call certain witnesses because it record doesn't show they even know about these witnesses so as if you don't know about it and it doesn't inquire of course but it does present in the vein that if you've got on a list of witnesses that you don't even know about and it is got to move like the mother and others that question is the deficient performance of the council in terms of not having this of nation i'm not sure even going to investigation it may be investigation may be for you to investigate for you to find witnesses for you to ask questions further to determine the cumulative nature of it as even if they didn't know about astley it would be cumulative background information and that cast and whether there was a nest category are messed diagnosis or something that  the ledger duds as they didn't know they were entitled to another closing argument they gave it up even though the statute provided they had it when they intentionally gave it up to make a final closing argument to let the jury go out after hearing not from the lawyer the lead lawyer even after hearing from the petitioner in addition jointed way that they are everybody is it than the lawyer because they didn't know that they had a right to make another closure segment of the closing argument one of the lawyers opened and they let the petitioner close personal they could have put a lawyer up st and then the petitioner and then the nd lawyer they get a both lawyers could have said talk to the jury and the petitioner talked to your they said they didn't understand that the be the law they miss struck that understand there i'm just looking at them and i'm not about the picture here that that adds to the picture of the everything that that's in here well your honor respectfully matched the pecha but it's not a point that you would want to look at the district court evaluation of whether these facts even if true would make out the kind of strickland claim that could lead to relief so anthrax are developed and that has a denture hearing whether they can do that and that  the clearly guilty in all that but it's it's it's pretty deficient if the statute says that they didn't know and they did they did and we don't concede the point because there's record support that they in all of these little things i mean i know there are other cases on a lot of cases in this area so you have a lot to talk about i know that but when you look at all of these things these council did here and there's a difficult factual situation as bad as what this wanted it looks to me like you would throw everything in one of the better term down south who said a kitchen sink and all the stuff you put everything you could in that i don't know what the strategy in if possible thing you could bring up couldn't hurt you in this case it certainly could hurt and you wonder why wouldn't you well i would answer to waste more on i think that the united states supreme court has sort of been where you're going and that is what is there to lose and is more always better and cases have come back to tell us that that's not always the case for instance in the young child's assertion and his domestic problem then that would invite evidence of how that relationship actually reflected how the adults perceive that relations the stalking the abuse there are dangers to going into certain accolade what we've talked about today really rests on the allegations not the proof of what council did or didn't know not the proof of the  allegation that there were physical disputes and that's are nothing like that that's not what we're going at we're stopping right now at the allegation so many of these allegations are made under martinez or they haven't been developed but the bottom line is it's still the type of category that counsel looked for that he had experts to search for and your honor it does have to be looked at in the case in this extreme aggravation and the quality of the information that would come in and can you find something in any case i would suggest to you that mitigation is the bread and butter of capital litigation it's going to be in every case and it's going to be contested on the trial level as it was here it's going to be contested in p c art as it was in besta gaited here we got affidavits from both p c r counsels that they had investigators themselves to investigate men again and of course now it is being investigated as part of the martinez analysis it's always going to be somebody that can be ta to a cousin somebody a friend who has some other aspect of it but what can counsel do counsel can do what counsel did in this case counsel could be aware that his powerful mitigation if there are some things in the background that could convince a jury and you try to uncover it you get the experts that are spar focused on discovering this and if the people that you talk to do not give you that here's the problem the information that we do have in the affidavit doesn't say that a juror saw any stand up there's not an allegation that it was a visible stand though there's the allegation is he was aware that at that counsel's aware that mr segment generally they are worn under the clothing and there was any indication that it was seen and it may have affected the deliberations i believe we would be in the position that you suggest and that's going back make a determination thank you for the additional  that's what the record evidence says here these lawyers were very candid which i think is to be admired but they said we just didn't know about these people and then that's corroborated by these people say and we never taught these lawyers so what you have here is a failure to investigate you know you pointed out that this was not a guilt or innocence trial in fact there was no challenge to the guilt or innocence from day one this was about giving brad sigman his day in court for his life whether that life is spent in a prison or not doesn't matter that that was what we were looking for death is different these cases are more carefully reviewed and they were not reviewed by these to this trial counsel they weren't best gaited these issues were found so it's not a matter of we did an extensive investigation into the background and we strategically decided for a list of reasons not to present that evidence it's not a case like wong where there is some compelling disastrous piece of evidence that will come into evidence if they present the stuff the domestic strife the violence between mr sigman and ms ms barbary that was on the record that was out there that was available to the  jury i think that you raise some important point about some of these other issues you know they didn't intentionally give up the closing and you see ten they negligently gave it up what's referenced in the record when they're discussing with the judge the order in which they humor about what they want the order to be but it's clear they don't know that it could go state defense attorney defendant defense attorney the same thing with the stun bell the record evidence from trial counsel that's what they s in the exact wording i think the way it goes is that the defense they both can argue in it and they can set the and so that was a something they just simply didn't understand the sunbelt is another issue you know the record now but at the time he had he had only done civil work and he had done a couple misdemeanor trials let me let me tell you when growth is as interested me in every death penalty case the issue if you go to trial and twenty years it has been done in those cases i think i find it amazing it in when i see this is is why it is almost it's almost as though counsel needs to create an issue you need to create something in that record that gives a basis for ineffective assistance of counsel if someone gets a death penalty i know that probably sounds a little different but but when you think about it you are game here is can also against legitimate strategy i think it would be it would be a dangerous strategy on her because you you would be there be some level of dishonesty and that's no i don't believe that and lawyer would intentionally make a mistake in a death new opportunity to go back to sentencing on it i know it sounds farfetched but they come up in every case you know when you know that and i'm not saying that doesn't happen even with the most we're not trying to kick the can down the road we want to stop an execution we want mr sigman to live albion and prison for the rest of his life i'm not trying to delay has executed and we're trying to stop his execution in this case we end up your honor so i would agree and if i could maybe make my very last point very quickly i time's running out in this particular case this was not a manufactured ineffective assistance of counsel i don't think i am so cynical as to think that happens your honor so i would us death is different so the layers of review the care we tank before we will execute a citizen is far greater than what we might do when someone gets convicted of a dui so we see these because we all make mistakes in life none of us are infallible so we see these mistakes called out because the ultimate consequence of these mistakes is a man's execution by the government it is as high a stake as you will ever find in any court room so that is why i think there are these constant ineffective assistance of counsel arguments because we are so cautious about what the result of missing that ineffectiveness would be in this case the record is replete with instances where they simply didn't know they simply didn't investigate they simply didn't put up the kind of case that they should've put up under supreme court precedent for circuit precedent the a b a god lines in the general idea that when you're trying to save a man's life thank you very much charles i apologize for going over