your honors criminal burns on behalf of the nine hundred judicial district for the state of louisiana representing appellant warden burl came this matter is on remand from the united states supreme court for this court to review the factual finding by the middle district of louisiana that kevin brumfield is intellectually disabled and therefore exempt from capital punishment is fixed by a louisiana jury on july the third of nine hundred ninety five are an initial presentation an appeal to this court was predicated on a dual fold issue that of at the deference by the federal district court and similarly a request that the finding of the district court reviewed and reversed while the opinion of this court focused on the issue of that the deference the court like wipes noted in footnote anything that even if it were to consider the newly presented evidence in federal court we w of intellectual disability i suggest to the court that the whole thing was simply that there was error and not holding a state i can see hearing nothing more there has been no finding at all as to the issue of intellectual disability intellectual disability they are two separate and distinct issues as noticed by justice prior during his colloquy during the oral arguments in which he stated in this burns if i had to rule right now on these issues i would say that as to the hearing you lose as to intellectual disability you win these are in fact two separate issues the bottom line of this  kevin bromfield was capable on a daily basis of coping with the demands of life in his community without the necessity of a structured support system i take it that the bottom line for this court is whether the district y he failed to do there was a and as it appeared in the opinion of the court that we had some type of burden that we had some type of burn to come forward and to say well you know i  that a ten year old could do this therefore the state in need to come back and do this we had no burden going into that hearing there was a burden on the defendant by a preponderance of the evidence to show that both as to intellectual functioning which is i q which is a number range that the case law says that are to be looked at not just clinical determinations by experts which we feel was was what the court basically hung its hat on during this acton's hearing not just those clinical conclusions which were aides to the  case question is that your position of clear error because you're brave doesn't really discuss the standard of review for clear our position your honor is simply that they have not met the burden under under a law which clearly says in all of the cases wrong and it is clearly to be a finding that he prevailed by the proponents of evidence as is clearly erroneous and your honor further we feel that the court first of all did not was not conversant with the case law and how to conduct an acton's review the court on approximately the third day through the hearing was not aware of the case law of the state of louisiana and i would start with manning with done three with the  been formulated in whole versus florida and most recently by this court in the handers and decision there are eyeball royalty of things the court by not being conversant with the case law cut off the introduction of the trial record he cut off as well by motion in limine a in advance of trying out the production of things such as prison witnesses that would test and testify as to the defendant's adaptive behavior in prison he felt that none of these things have relevant to the issue of adaptive functioning he felt the fact that although he opposed in his opinion which is which is ironic i would suppose proffer to the court he applied that we don't know who the leader of this crime was it may have been the other the other fellow very clearly that record showed that there was one leader in this case and it was done by both expert testimony the facts of this case and the defendant's own words his confession in this case is to confessions it was done by his testimony during the motion to suppress it was done during his outburst to the court on october twenty third of two thousand and five at the post conviction hearing and which when he realized he was being ruled against are you arguing that the court abused  discretion in some of these things that you say the proceedings or are you just putting notes in for flavor or something i don't understand i don't see this is point raising your brief specifically not at all three times or so of the of the hearing we attempted to introduce the record and at the court very clearly said i don't for example i don't find the fact that this man was in the store seventy seven minutes before the killing occurred to view that he smothers and the clerk the fact he said that had nothing to do with his adaptive behavior he found that when i tried to introduce testimony concerning the motive for the crime which was that he needed to produce money for his pregnant girlfriend he would not allow that testimony into the record because he considered that relevant that showed motive it showed that that those this was to bring leader of the the crime his motivation for it this was not allowed what was also not allowed was the fact that ring a bell is the stuff in your brief that the court disallowed yes that the court disallowed the evidence of the record which it goes to show adaptive function and i don't see how you can discuss whether a person is intellectually disabled  without looking to the crime they committed before during and after the case law is replete we repeatedly raised the error with this we raise it in our brief but i don't i don't sorry i know that you do discuss that the court didn't let you get in certain evidence or whatever but you don't raise that is an error point you just say that if the court if the court looked better at the evidence they would it would find your way so these are not actual points of error legal error are they you don't brief them is points of legal error of the fact that the record was not allowed to be introduced i believe this very clear error i don't see how any court that they have violated the law every one of these cases has looked at the facts of the taste has looked at prison behavior behavior before during and after other crimes he did not want to allow us to present evidence of crimes that occurred two weeks before the court attempted to make a purely clinical determination of intellectual disability based upon what i would submit to the court is very suspicious expert testimony by dr klein stain piggybacked by dr swanson that was the only evidence that was put forth in this case so let me just can just can we slow down for just a second place are you saying that you're saying you're not saying that the court committed legal error you're saying the court clearly erred in failing to consider certain facts when it made its factual determination i believe that committed legal errors well because it violated the the the standards of the vocal state of what i do but i don't see those as points you raise in your brief that you know like appellate point mine is this legal error on this i just think the whole thing is just if the court looked at the evidence wrong maybe well and them i'm wrong on that of course of that that it did as well look at the evidence because you had what you did have of the record certainly which was the confessions of this defendant the parts of the testimony that were in fact allowed into the record that showed his pre planning that showed his mental condition that showed the trial testimony and a lot of that came in own in the sense that at penalty phase you had two other victims who testified you had his family that testified that contrary to what was of the eventually elicited during the a bass interviews with dr weinstein that was totally totally contrary  different to that so your focus today is on the exclusion of the record it's not just the exclusion your honor it's also the content of the brecker it's what do you prove what has been proven in this case what what was put on was dr swanson who piggybacked her findings her expert opinions if you come to the court her expert opinion was totally based on a very cursory admittedly cursory review the academic records only a few days before her report was due she had never met with this defendant she did not meet with him for seventeen years even though her report was due at that time she entirely she could have looked at the two confession tapes she  do so she did not know one fact of this case she did not review any of the penalty phase reports of doctors both her doctor give you and the incorporation of the testimony of dr jordan she simply based a finding without having me testify on the credibility it is more to the credibility but the fact is too that she had never been accepted as an expert in court until the actons decision over and she was retard from her practice for thirty years she began testifying as an expert after thirty years is there a dog or hearing that was not what we legal challenge that this expert was on qualified and therefore their opinion should we did during want to hear of could not hear before us that day the court erred in allowing th expert the objections would have been made in the trial before the trial court right but so we can only review it now on credibility and if there is some evidence in the record to support the burn allegation that he has an i q of seventy or seventy five now there has to be a preponderance of the evidence and what we're saying here is that her testimony is not worthy of credibility and more precisely what she based her testimony on was the attended and got a ph d from a university that no longer exists was never a credited was never a bricks and mortar he testifies only for the defense he had not had a clinical practice since two thousand and two he has a down syndrome child fact we brought out the other cases i questioned him on that and eventually the court cut me off and said well you know mr burns we heard enough about his other cases we felt he should not have been qualified as an expert yet in the opinion where we put on experts who testified they're both their trial experts dr bolter that i think is really huge in this case i think that is the most prevalent fact is the fact that their trial witness who was hired and privately funded for them the witness of their choice along with dr brian jordan along with dr cecil bew and none of these people for a history of twenty two years found at the conclusion of this trial that there was ever the label of intellectual disability which would be a form of mental retardation he was in behavior disordered classes he was never labeled as mentally disabled he was never pertained it was not until the breakup of his family that the destruction occurred and there are but the records will show even from this is sippy that he was making obese and one c when he was in mississippi and only with the breakup of his family did this acting out behavior occur and is the courts of have found most recently in the henderson decision these the types of things a black instructor in a home the breakup of the family an abusive home a bad community are not the reasons for to label somebody is mentally retarded the end under the louisiana statute as well none of these things constitute intellectual disability for twenty two years he was labeled as aggressive undersocialized behavior disorder a d h d and later of the forced into anti social personality disorder even by his own doctors which we call dr bolter at the federal hearing as well in he said i never suspected mental retardation i still do not suspect mental retardation and this is a man with a bachelor's from berkeley university of the pacific university of memphis he is a prescribe neuropsychologist at a respected institution and there was and he was there and hired by the defense to flush out any and all possibilities for a defense and even though mental retardation as an execution born did not exist in one thousand nine hundred five at the time of this trial it was nevertheless under louisiana law allowed to be used as a mitigator if the person was under the influence or domination of another human being if because of a mental disease or defect they could not appreciate the criminality of their act if they were a principle whose participation was relatively minor as it argued in the medication has it was not because i submit to the court it was not there it was argued simply that he's a behavior problem he came out of a band home he does have a lower i q but it was an i q that was testified to as being seventy five and in this case you had what you had was six psychologists to medical doctors who evaluated him with a whisk the waist for a gentleman as early as march the fifteenth of nineteen eighty four saying he was either in the low average two borderline dull dull normal range which could be anywhere from seventy to seventy five do normal during the course of the hearing eighty to eighty nine there was never any indication that that he tested in this range and even the tests of a dr borenstein put him in a seventy two dr bolter and a seventy five doctor hopping in a seventy so you have to go to the adaptive behavior and in this case he well functioned as the leader of this crime we know it from his confession types his ability first of all to proffer a defense of our by trying to solicit it through his girlfriend proffering it to the police then when he was caught he tried to minimize his participate ation which is evidence of the doubt the functioning by lying and saying i was the driver not one of the two shooters then when he was finally cornered his last confession tape which is very goes into great details of the crime on the streets that he took the court can watch that and see the fluidity of the ability to plan and the ability to formulate he admits that he planned this crime he admits it was a complex crime where he had to scope it out and even went to the store seventy seven minutes before work to verify that there were two vulnerable female victims there just as he had robbed two vulnerable female victims five days before this crime and another vulnerable man on december the twenty fifth as well he had the ability not to be goble as as the doctor said as dr weinstein said but he preyed on helpless people he was one who was able to lawyer to show his his deficits he was able to also in tandem with the other shooter this was the a the reason the state wanted to introduce the testimony of the coroner and the trajectory expert was to show that you had two shooters  the judge at the district level said we don't know who did what but if you had read that you would know that each of these individuals worked in tandem with each other to shoot simultaneously but also independent of each other there was no coercion no leading which is which is the primary function of the court in finding that somebody is in fact intellectually disabled that they are at the behest of another person that they act with impulsivity as opposed to planning and premeditation in this case i'm sorry to bother you interrupt you can't i am really trying to get at prism by that at that to which to evaluate this case are you saying that you can establish that the district court's finding of intellectual disability is implausible in light of the record as a whole or are you not saying that and saying as a matter of law he is not intellectually disabled as a matter of law and definite but do you concede that you cannot establish that the district court's finding is implausible in light of the record as a whole i would disagree with that i would say that both apply quite honestly are you think you can meet both of them i do your honor with all due respect because but boring a record and leaving it and putting weight down to someone who who has been found to be dishonest in court and in this case what on direct questioning by myself of dr weinstein he admitted what was in his report that this defendant couldn't even like shoes that he could never find a job that he could never find employment that he had poor hygiene that he couldn't pay that he couldn't play sports all of this was debunked by the  interviews in his case he absolutely did not with candor submit to the court what was in those underlying findings and to boot what i consider the most dishonest piece of evidence on his part was exhibit piece three that came into the trial which was a chart of supposedly all the i q testing which deliberately ignored the first wisc test in one thousand nine hundred four by dr young which showed him to be low average no borderline normal  don't normal excuse me and then it included a c tony and a p p t which dr greenspan testified should never have been included there and finally dr weinstein admitted you know i shouldn't put that one in and i was like what why didn't you put the other one in either and then to be on top of that to compound the error he put down that it was a fifty four when he knew that there was another number a seventy following yet rather than telling that to the court that there were pot there's a possibility of two numbers here he put down that it was a fifty four and and but we were at the supreme court and republican argument counsel for mr brumfield argued in a final pleading are you going to execute a man with an i q of fifty four when that record and that witness admitted that that should never have been in there and he didn't even know that number but we're trying to get out here is accuracy and the truth there were he did not prevail on his burden he is presumed sane responsible it is up to in a for him to come forward with evidence that is reasonable that proves beyond a preponderance his witnesses in this case actually i think you have an hour now you have the burden either to establish as a matter of law that he fails or to establish that the district court's determination is factually implausible and we would you under it do what he would like to and i would submit to the court that that that is an implausible opinion because everything in that opinion where the court allude been the other guy it could have been this it could have been that that is absolutely implausible and had he read the record i have never seen any case where there's been expert testimony that the court credits that where we would say that was impossible any case at all in any context i would i would look to the cases where they talked about a doctor and dr borenstein as being incredulous q of seventy unadjusted in any sort of way is also not in dispute before the district court that to the extent mr bromfield has proven his limitations they manifested during the development the only issue before this court is whether the district court matter of law challenge by the state here it's conceded that the district court applied the correct standard for intellectual disability from the front for instance before the district court it was the state who put forth put forth the standard for intellectual it's just that in passing in their brief and it seemed to be that was what was being archy today said that's why i was asking your honor to be honest we're not quite sure what the state is arguing because they never once in their brief acknowledged the standard of review of clear air and never point to a specific clearly erroneous fact basis for had was your honor undisputed evidence that mr brumfield reads at a fourth grade level the state's own expert put him in a fourth grade level and the state's expert described that is this that's that's simply word recognition is a quote that's not even comprehension that's just a den of fine words that came out of the supreme court's opinion as well that that was in the state record as well there was undisputed evidence to mr bromfield rights at a fourth grade reading level and in fact had a severely limited that's a limited motor skills he requires a consistency and i'll make one other point about that your honor which is this not only did mr brumfield have and does he continue to have a fourth grade reading level fourth grade reading level what the evidence showed in this record was that she was put in the most structured offering that louisiana schools had to offer which was for behavioral disordered students and what the evidence said here that the evidence in the record here was that what you would expect in that sort of classroom is to see that there still progression but despite the one on one attention that mr bromfield received from the fifth grade on which to the ninth grade by the time he dropped out of school he never progressed at all at the demichelis in the ninth grade mr bromfield was test was tested first problem solving skills he tested in the first grade nine months but that means that when mr brumfield was fourteen years old he had the problem solving skills of a five or six year old and so what you see in this is the evidence in the record is dr swanson testified to this when you see that sort of plateau academically that's the epitome of intellectual disability so it's much more simple it's much more than simply you know what occurs in other people who may be illiterate but you have here is actual evidence in the record that he received individual attention and still couldn't achieve beyond those levels and still today can't achieve beyond those and in addition your honor that additional limitations we have in the record beyond simply plots hoeing academically despite his attention and beyond quote needing someone to help him function whether he was at home or at school that was in dr whens report which is in the record all of those come from the school medical records and from the interviews that mr brumfield experts undertook with several people who knew mr bromfield that during the development of in addition to those limitations you have evidence that mr bromfield couldn't follow simple directions again from his school records when he was asked to follow simple directions he seemed confused was the quote from the from the school records this is at the time of this is in the fifth grade do you agree that this could have gone either way on the second prong your honor i think it's really hard to reach that conclusion i'll tell you why mr bromfield put forth again objective evidence and i still have more to go through of his limitations and objective testing neurological testing they didn't have they didn't put on an expert who is qualified to contest that testing and they crucially and the district court found this and this is this was down as well as court's decision and wiley the the state's expert supreme court the united states not only did they not follow those guidelines but they didn't kind of the because they didn't follow his guns because they didn't speak with those people they couldn't rebut the evidence that mr brumfield couldn't follow simple directions  the reason they remember kevin bromfield out of the thousands of students they taught was because if any student they taught ever needed special attention it was kevin brumfield that's on the record here they didn't interview those states experts didn't interview those teachers didn't which the state's expert says i told the counsel for the state that it would be very important for me to interview these people and counsel for mr brumfield goes through and says would have been helpful to talk to the coach yes that would be very helpful but i only have the records i have and so what you have and this is why i answer your question is i really don't think it's possible to come to the conclusion you have the state's experts telling you i can't give a centrally a full opinion on this that's consistent with the standard of care of acquired of me as a medical profession now they did give the opinion that limited opinion that he's not intellectually disabled but that because they didn't follow the standard of care i think it would have been a real problem for the district court to to reject the evidence of mr brown to the experts who did follow the standard you and i would like to talk about a few other limitations because i think it really is important to understand how much evidence there was of limitations and really the consistency and i really do think that's what distinguishes this case or makes this case easier than prior cases it's really the consistency you have no scores of many of the limitations i mentioned before in addition to his inability to follow instructions of test if you have testimony that his coach and his maternal grandmother who worked in a group home for the intellectually disabled said that he couldn't follow simple rules of games was brain dysfunction which inhibited his ability to understand the consequences of his actions and cause him to have impulsive be hit and that language is really resonates and is really fundamental to act in itself and in ac supreme court said that the reason that intellectually disabled persons cannot constitutionally be executed whites cruel and unusual is that they have diminished capacity and diminished ability to control their impulses and to understand the consequences of their action that's what you have to do and that again unrebutted by the state the state's expert here testified that yes i see those results and they do seem to indicate brain dysfunction but i'm not qualified to run  was and that's clear and secondly and more fundamentally you know putting aside the standard of review i think it would be a real problem to do that and now the district court clearly recognized that no problem to do what a real problem to conclude that mr bro is not intellectually disabled simply based on the fact that he can read he can drive a car and let me let me go directly to the guidelines which again louisiana supreme court has said we look to for these sorts of things the a i d d eleventh manual says specifically that it's very important when diagnosing intellectual disability to to dispel the incorrect stereotypes that intellectually disabled persons can't do complex tasks that they can't get a driver's license by cars drive different in texas where that does look at day to day activity your honor it is very different in texas and we don't louisiana does not have a percentage you know anything like that so where you might look at driving a car and doing all those things those would be  if they they might choose to look at that's right your honor and the district court did look at that it was very clear that he was he was considering everything the state was putting before him but but did not find that it would be appropriate to rule out intellectual disability based on any of those and the evidence in the record more importantly said consistent with these guidelines that persons with intellectual disability can get licenses can drive cars and so you shouldn't consider those to be dispositive intellectual disability and to outweigh the limitations the serious limitations of mr field when you say they're not dispositive that are that there are some evidence that goes the other way while you're at it so the test for intellectual disability for instance does look to practical skills and so sometimes those things can speak to practical skills and i wouldn't say that there are you know off the table altogether but what we're talking about here are the limitations that the district court found here have nothing to do with those sorts of things with the ability to record the limitations here again severely limited ability to read plateaued academically across the board despite having individual eyes attention for years couldn't follow simple rules couldn't follow simple instructions and then you have you can't process information the way that that most people can and he's again in the bottom one percent of the population based on that neurological testing and again that's why i bring it back to the consistency in this case there really is no outlier it's not like for instance wiley in which this court didn't find uncle on his maternal side who also have moderate intellectual deceit you have testimony that his mother took psychotropic medicine during her pregnancy you have when you go to the birth of the actual birth microscopic medicine or drugs  implausible for the district court to have seen that evidence and said there really is nothing controverted here about any of this evidence what do you do i mean you know this is the standard deal and that is what do you do with the evidence of that  itself where the murder occurred and all the planning etc that one end of that deal what do you what's your response to that have a few responses your honor the first is it's very clear that the district or just to be very clear because are actually absolutely no facts here and this was conceded by the state's experts your honor there are no facts as to what mr broomfield actual level of participant a crime was meaning being a leader or being a follower as the state advances in the state's expert what we don't know is and what the facts certainly do not show is that mr brumfiel had any sort of leadership role in this crime and that's what the district court judge the district court found here and the state really gives no basis for his finding that finding to be clearly erroneous and again the state's own experts conceded that you can really only get to the leadership conclusion if you infer that he did everything and he was the one who is leaving everything that's not in the record  your honor i would like to go to a couple other points that were raised by the state just to just to clarify a few things in the record the the state mentioned many times saying that the district court cut off the trial record and there's some sort of issue here with respect to the evidence that was allowed or disallowed you know that's absolutely not true first of all we're really still unsure of what evidence the state's talking about nowhere in their brief today cite to a specific piece of evidence that they say should have been the pieces of evidence that were allowed in one the coroner's testimony from trial in which the coroner testified about the cause of the victim's death the autopsy what judge brady let me get that with another one the second one was a forensic scientist who testified at the trial about or no relevance even with limited motor skills well your honor the motor skills it only fine motor skills and it's not i mean i don't i don't i'm asking well your honor the s t limited motor skills when he's writing his his ability to write in a straight line that again was undisputed evidence that the state never contested it and the testimony actually came not only from the evaluations by mr bromfield expert mr mr crump it's fourth grade teacher recall the fact that he can use it again and make quotes of famous quotes why isn't that counter into it counter to the fourth grade level and barely can identify words your honor there are a couple  reasons for that the first and probably most important reason is actually something that can both experts for the state said and you'll notice that when the state in its brief goes to the verbal behavior starts quoting the phone calls there's not a single site there to any expert testimony when it starts doing that and the reason is that the state's experts wouldn't even go there during the direct to dr harvey which was one of the state's witness dr he interrupted counsel for the state and said i just want to correct something you just said which is that i want to make very clear that person with intellectual disability can have very good verbal skills and so we don't look to that to determine whether someone has and what he and the state second expert dr blanch said the same thing he said i agree with the guidelines the guidelines say you don't look to verbal behavior and the reason is that even persons with intellectual disability can have flu and see in the way they speak by the time they're adolescence and so you really can't tell the difference between someone who's intellectually disabled and someone who's not by looking at verbal behavior so that's the most fundamental answer of your honor there was also but getting back to that cutting off the trial record i'll just say the only other evidence the other evidence that was cut off asserted that was not admitted but there were two more one was the testimony of super nard which was a witness at trial who saw mr brumfield the day before the crime again that fact was not disputed by mr brumfield and this the district court clearly did know about it contrary to the state's ingestion because he refers to it in his own opinion and says i don't think that that in any way cuts against life for this ability again opposing counsel says judge brady repeatedly refused to admit the trial court record into evidence so if i were to go to the record and want to study the record in detail if i wanted to continue to make sure i'm double checking no as with any other trial in order to admit evidence the state had to show relevance and so what i'm saying now is that the entire penalty phase record which is where you have some testimony about mr brumfield himself w trial record that were not admitted again the coroner the forensics expert and super nard who saw mr brown feel that store that those are the only parts we're aware of and again the state doesn't point to what they're talking about there to be honest your honor so we don't know for sure but those are the only three a piece of and were aware of that were not it and so at the medication hands of the of the trial was read mental retardation offered argue your honor there was no issue of intellectual atkins i only say that there was some evidence of the mental state and mental capacity which is what the supreme court looked at in this case and your honor i think it's worth looking at how extraordinary it is what the state is asking this court to do in this current posture the supreme court looked at and i agree with the state it looked at the the state record only looked at the pre actions trial phase record primarily we're talking about the mitigation that the penalty phase evidence ok but what about the regular trial it with that introduced and decline offered and refused your honor again so that the testimony i'm referring to that the coroner the forensics expert in super never all from the trial  they would know that brumfield kept a larger caliber gun for himself and gave the smaller gun to his codefendant that he would ride around town looking for places to commit crimes except for and so they're saying that he the court did state's referring to come from mr brumfield confession and the confession was played in open court judge brady the district court listened to that experts testified on that and said what he mentions in that confession tape all of every all the things he mentions doing are entirely consistent with intellectual disability but it's not in the state record so i say that if you think if he testified to that in his confession hours statement was that information also in the state record because opposing counsel seem is that some of them sent a very clear message that if they were going to look at this they would find that he was he wasn't intellectually disabled and where does that come from this is part of the message from the state well so your honor just to be very clear what the supreme court decided is in this case it looked at the state trial record and it said the evidence in the state trial record prices provided quote substantial reason to believe that mr bromfield is intellectually disabled that he has a state putting aside the propriety of pointing to a question at oral argument if you look at the context of justice breyer's common it's very clear that what he's saying there it's done through a long exchange to try to clarify what is the issue before this court is it whether the state court record necessarily proved that he was intellectually disabled even though that wasn't an issue for state court or was it that the state court records show that he was entitled to hear and so just as prior says counsel for the state i'm overstating this but what i'm trying to say is if it is that he needs a hearing then you lose because there was a lot of evidence in there that would would entitle them a hearing if it is that he the state court record alone at which intellectual never came up had to show that he is in fact intellectually disabled again were under the deferential at the standard if that's the case maybe when so it really has no bearing on the current issue before the court which is whether all of that evidence that was in the state court rec sorry the coroner and the forensic expert was irrelevant to the supreme court's opinion it was never raised at all and actually of all of the evidence that's relevant before the district court and then you have seven days of expert testimony you have two your medical records school records you have the interviews of fourteen persons who knew mr brumfield none of whom believed he was on par with his peers and again the various limitations and all of that was added after the supreme court's hearing and so that's why i say this is extraordinary because what the status is  telling this court is that even though the supreme court said that the pre actions record alone provided quote substantial reason to believe in he's in what he is able and after there was seven days of evidence of limitations the district intellectually disabled your honor what the what was very clear about the court's opinion was that it was resolving the case on the basis of had and not on that basis and the court could have but did not go that route what we have now again your honor is the please the court i would like to first clarify the issue of the introduction and the attempts repeatedly on three separate occasions to introduce the entirety of the trial court record that was refused and if the court will look at the very last remarks that i may i once again as a last ditch effort try to offer it to the court the courts respond the court denied it and said only if you and mr tren or trial counsel can get together and agree upon those portions then you agree upon them he absolutely required explicit portions were excluded every and truly everything was what i attempted to do when testimony of cassandra holmes who will show the moment in this case pregnant girlfriend needing money he tells her i'm going to go out tonight i'll get a thousand dollars for you which shows not only it shows the motive it shows that he was the ringleader that was excluded that was excluded and so it's just the coroner's report and no it's not a super nord's testimony was excluded and i might end that counsel at the district court hearing for mr brown field mr trying to cost a seyyed and when the court asked me what he wanted i said he was in there seventy seven minutes before the crime to see betty smothers in her uniform working and see that there was a female clark mr trying to discuss this response and it's in the record is that he was never in the store that night when there was clearly this witness to show that he abruptly were in the store the testimony of ada jones who was the manager of that store who would have testified this this particular bigly that was robbed was only one of us there were six stores in the system this was the only store in the system that bank at this particular bank far away from where both broadway brumfield and the driver lived and it requires scoping driving there which i deployed i deployed the two confession tapes during the course of the district court hearing and then they did jones's testimony which would have showed the complexity of having to scope out this particular store find it find out where it banked when it banked and mr brumfield in his confession even admits that i ride around at night he admitted that he was the leader he was he was what he had gone to john lewis he had gone to eddie paul and paul's testimony i was admitted john lewis was admitted the testimony of eddie paul also showed that he had come in approximately a december the twenty fifth was excluded he said that has no relevance and the testimony of trina perkins and her mother edna perry was also excluded and this was relevant because even with their own expert dr greenspan said it is unlikely that someone who so first from an elect disability would be able to perpetuate within a two week period a span of very successful on robberies in which he had a leadership position opposing counsel says it is in the evidence then about the gun size and play when i put before i play the tapes with the actor who took the the confessions from him i tried to elicit the fact that there were two guns there were two different calibers judge brady cut me off and said that i don't see the relevance in any of this my whole point are you who are questioning jury tell him to the detective who will listen to the two and tell me that already in evidence because the confession was in evidence he at no it was not at that point i had not been able to play the tapes i was laying predicate but did you get to play the tapes and so that this did actually come before judge brady i played the tapes but well and the tapes mr brumfield very clearly states i scoped it out i ride around at night i have followed them once before oh i are not myself into the jury heard that the jury yes and the jury heard it wasn't excluded it's not on talk about that no it was not excluded the judge could have heard that but the jury obviously heard that during during the trial itself additionally what i'd like to also go into is the fact that this man who supposedly according to the weinstein couldn't lace issues couldn't follow simple orders was basically what i would suggest to the score represented in his report as almost like a person of idiotic norms this person had had three legitimate jobs that he ultimately quit it is in the record that he chose to drug deal because it was more productive and financially to him like you know we go back to the old village idiot standard and the way dr weinstein wrote that report it was as if to say this man cannot even place issues when i questioned him because everybody said he certainly could life that she was he said well you know he can't do it fashionably and when i work well i don't consider illegal employment various things like that you know this was an important oh he had never entered into a contract this is a twenty year old person and yes he did rent cars street rental cars he had rented a hotel rooms the