chief judge cole is not going to be with us physically but he will as i understand it review the tapes afterwards right he's not connected with us right now so no so he's not actually listening right this moment but he will listen carefully to the tapes and and our discussion of this afternoon so please  co counsel is here with me as you know this is a capital case that arises out of the state of ohio we've got a an inmate named grady brinkley who was convicted of aggravated murder in two thousand with two capital specifications what i want to talk about today with the court principly are two issues related to the mitigation ineffectiveness claim number one that this isn't a nov review that this court is bound by nothing connection with twenty two fifty four d and in the court can look at this a new and arrive at its own decision regarding the merits of this claim second i want to talk about the merits of this claim both the performance and the prejudice prong before jumping into that though i think it's appropriate in this case to to note the specifications that we're dealing with we're dealing with two specifications there is the you know from the c e o way that this court granted raise reasonable questions as to whether there's even sufficient evidence as to those facts so i don't want to go into the merits of that because i think that's fully addressed in the briefs but i think in terms of understanding in analyzing the the mitigation i think that's important to keep in mind that the specs here are weak there feeble but there's a question here is to really if you look at this case why is this a capital case you know this is sort of the you know i mean it's an aggravated murder and that's tragic and nobody denies that but the g s of the prisons of ohio are filled with people who aren't on death row who are convicted of having killed a boyfriend or girlfriend because this fight which i think reasonable is one reasonable reasonable way to look at this of an incipient believe brady brinkley committed this crime i mean i fully appreciate your point and i don't quarrel with your your statement that these aren't the strongest specs that you know we've ever seen on the other hand if one says the jury could have accepted these then it lends a much more cold blooded rationale to the killing than you know almost second degree murder sort i can't believe you cheated me type of thing fair enough but fair enough but i think in terms of approaching the the analysis in the way in which dunno you do i think look at this i think people coming to this case certainly i think judges coming to this case may look at it and say hey you know is this really properly academy i guess you know it could factor in proper in terms of the prejudice right  i mean if there were just really really powerful specifications these facts then that would be something that would be part of the prejudice analysis i think that's right i think some of this court 's opinions do do address that they do look at the specs and they do say ok what do we got here sometimes it's only one spec sometimes it's weak evidence of a speck i think that goes into the way the dyno aspect of this though because i think that's critically important in analyzing this this review is the no vote there is no in this is important there is no state court decision that adjudicated the merits of gray brinkley's ineffective assistance count of counsel in mitigation claim as it was presented in federal court which is a outside the record claim reliant on substantial evidence that wasn't available in the direct appeal and i know this is set out in the breeze but i think and i think you know from the parties that this is kind of a critical point in the analysis is there a state court decision that adjudicated this now the answer here is no we know that the direct appeal there was a variance of ineffective assistance claim presented to the house supreme court and they were they rejected it they considered that claim and they rejected it that claim is not that claim is not before we have a different claim before us that claim that claim was that it was done within the house supreme court now we have a different claim in post conviction  properly presented and post conviction it was supported with all the evidence outside the record that was unavailable in the direct appeal including the affidavit of dr robert smith the psychologist critically important evidence on this record in our view including the up the testimony of dr douglas smith who wasn't presented in the in the trial the the evidence of quince brinkley the cousin the evidence of of  assistance of counsel in the mitigating phase of this case that the claim that was presented here in federal court has never been adjudicated by any state court and so this court's review is no i think a very helpful way to look at this case was the way this court looked at it in the mcguire decision that you want to know were involved with judge robert rogers where the question was trying to analyze ohio's rescue to kind of rules and how they work and i think this court came to the right answer which is the answer post conviction doesn't apply it out i mean by definition under ohio law he could not have presented a claim in a fact of assistance claim a direct appeal that relied upon evidence beyond the trial record right so i mean when the heck is he supposed to you know present that claim he's supposed to present that anymore here what the state has to thank but i mean that's a rule that's from the year to us you know twenty to fifty five i mean we say all day long you know bring that one in a twenty two fifty five you don't like your lawyer in myrna direct appeal right and it wasn't raised in the direct appeal there was a different claim raised in the direct appeal if you different was it well it was different in the sense that it relied in only rely on the record before the trial court in the direct appeal which is the trial court i could only rely on because that's the rule that ohio law has imposed on in the room talking about the issues they did raise the claim how is it different from the other claim well they raised the claim because you couldn't rely on certain facts doesn't make it a different claim well i think there's two points to make first of all is you know how it was phrased what what was raised in the direct appeal was a claim presented two witnesses and they didn't do enough in mitigation that's it that's all they set and all the all the trial court to the direct appeal court had before it to adjudicate and then the direct appeal court said nothing of the direct appeal court the house supreme court the only court that was present at the decline rejected that claim and said no the we don't we don't agree we don't see any evidence we don't see any evidence that the ana think of the underlying reasons for policies underlying it that we defer to the state court on these issues rather than the federal court if all those things happen that would be the case but that didn't have your part of it didn't happen that the the claim that was presented to the federal court which is the outside the record based claim of ineffective assistance of counsel was never adjudicated by the house state court the house supreme court did not adjudicate that claim and was incapable of adjudicating that claim because it had none of that in the house state courts themselves have recognized this is how arrest you get the distinction between additional evidence for a claim and something being a separate claim because there's it is eleven it's to support it well i mean i think it kind of a fuzzy distinction there is it really isn't me you know why judge here's the other way to look at my other point on this because of how arrest you to cut it doesn't just say what you did race it also says what you could raise and so then the answer should be the same regardless of how you look at it you know you as a judge would be answer should be asking you the same question what could you have raised in the direct appeal if you didn't raise it in the direct appeal what could you raise and the answer to that is you could or raised the argument that if you look at the trial record you're going to have you can come to the conclusion that they were ineffective you could say ok you could raise that that claim is barred by rescue because but the different claim which is the outside the record variant which requires evidence that was never presented it couldn't be presented wasn't raised couldn't have been raised wasn't adjudicated couldn't have been adjudicated in the house they course have said that's how rest judicata applies this your honor in mcguire cited a court decision called state the richmond which held just that you could raise these claims once in direct appeal and then if you lose raise the same ineffective assistance of counsel claim for example in mitigation with additional evidence outside the record and bring that in post conviction in fact you can do that and not only can you do that you're supposed to do that that's true if you just phrased it it's the same claim so there's a way of using the english language to say that's the same claim it just had more of evidence that's about actually the way you just phrased it so i'm not saying how that why why the policy of it to suggest that we have treated as a different class because it because for purposes of rescue caught it is a different claim and that's that that's the legal consequences of that that that is a different claim that has to be raised in post conviction and if you're going to defer to the state courts they've got to roll up their sleeves and they've got adjudicate that claim the call i mean we just said and this is really more for the state i guess the answer but we just said shepard bagley which is a case in which the state prevailed the second one that some of the claims before us there were different claims for purposes of the so i guess that would cut both ways you know and just because it's called in effect our point there is just because it's called it was ineffective assistance recall just because it's called ineffective assistance doesn't mean it's the same claim if you have different theories or different in favor brinkley which is to say he couldn't raise that earlier because of preside relies on the sevens outside the record he had to raise it when he did raise it he raised it in post conviction properly at the first time it's not like mcguire mcguire case where they raised it in direct appeal and then failed to raise present any evidence outside the record impose conviction and then tried and second post conviction petition to now put the evidence in the record that's different brinkley did it right  raised the outside the record evidence in the first post conviction petition which is the way you're supposed to do it he did everything right rest judicata was incorrectly applied to bar his claim so you ask the question the good question so what are the principles of ip well the principles of that the say when you incorrectly refused to consider the merits of the claim because you rely on a procedural rule that doesn't even apply under your own law and you refused to get to the merits then you there's no comedy interest there to protect the state courts have to roll up their sleeves and do this the first time if they do it the first time if they educate the merits of that claim the first time then sure they get their friends we understand that but if they don't which is our case then no they don't get  deference that's fair that's the right result they should have done it right the first time they did ask me one question about the evidence that has been developed to over the course of the case we have a bunch of evidence that that is presented in the post conviction petition in state court and then we have a lot more testimony from basically the same witnesses in the federal proceeding the question i have there is why would we be able to consider the federal testimony not because of what's in a case in a holster in a holster not because of that but because a twenty to fifty four e s requirement that basically you know the petitioner be diligent and which i understand i mean look if you could have generated this federal hearing evidence when you're in the state then then we're not going to consider it i mean like why couldn't they have gotten this other evidence back when these same folks are testifying in state court well i think that's a good question and i think the answer hearing d d s for discovery did he do the things of the diligent fact finder is it needs to do to develop the facts and in post conviction he did all those things he presented the dr robert smith affidavit he presented the doctor douglas smith affidavit he presented records that supported their their opinions he presented affidavits and he asked for discovery and he asked for the opportunity to take their depositions and he asked for the opportunity to develop additional evidence to support it and he was  so he did everything he was supposed to do but about as to his own witnesses and his own witnesses i mean so correct me if i'm wrong but my understanding is post conviction you got what a bunch of affidavits from like dr smith and and all these there was no doctor brams and post condition here ok so i guess why wasn't there you know i mean there is dr brams in the federal rights she's on his side at the outset i mean why why why why should we why should why shouldn't we say hey you know dr brands you need to sort of get that together in state court and you didn't so asked her you weren't diligent you follow me i don't think it i don't think it's a document by document analysis i think it's more of a claim was the claim of ineffective assistance of counsel in mitigation presented in the state courts with evidence to support it which it was was it was the petitioner diligent in seeking to further develop that record by for example getting permission to take the deposition  brahms for for example getting the permission to develop input in addition eleven's all those things happened in state court you know he presented the evidence of of the claim and supported the claim and then all twenty two fifty requires is that he be diligent and it not be his fault that the records weren't developed and so i think by putting in the claim the broad outlines of the claim with some specificity there were four sub claims presented in post conviction there i think their claims five six seven eight in the post conviction petition and each of them had these affidavits that you mention dr brahms right that wasn't one of them but but the notion that there were psychic there was psychological and psychiatric testimony available was clearly presented that issue was developed it was developed with evidence outside the record and had had it hadn't been given the hearing in state court that judge adams gave him in federal court you would have had the julie brahms evidence then you would have had the the dr amador report than you would have had exactly which ended up with in federal court had the state court given what the state courts should have done but did so i do think under twenty to fifty four yhe did everything he was supposed to do in this really one of the more powerful mitigators i've heard lately you know and i think that's a fair initial reaction but i think what lawyers have a duty to do is not to make just initial reactions when you're representing somebody i think your duty is to say ok narcissistic personality disorder that's going to present some challenges but that's an opportunity this could this helps explain what happened here nurses sicked just a personality disorder is a serious mental health condition her case you know lawyers doctors judges you know candidates for president presidents i mean it is literally the clinical part it is so calm so it's of have no i do think though  trial lawyers but it might up because it's hard you might stop because it's going to do more harm than good but here's the my our take on it your honor it wouldn't have done more harm than good an aggressive effective advocate would have made this his winning argument because you can present grady brinkley as the victim of his development this narcissistic personality disorder is a disabling mental health condition of a psych employee not disabling well but you would simply not do that your honor that would have been there that would have been the state's duty to make that argument to a jury or it is simply not to say i mean it's we're not talking about psychosis we're not even in like the saying you know it's a zip code a psychosis here well but i think we had an expert  who was going to get up and testify had he been presented to a jury that this is a serious mental health condition that people have that isn't their fault so that's the part of it gets me it's not his fault he don't grow up wanting to be a nurse  ali his lawyer can say what's houses appeal to a jury i know juries i may not know psychology but i know juries and i'm more likely to get enough sympathy to get that one juror if they start when the mother starts crying than if i have a psychologist just up there talking about these technical diseases which sound even worse than they are right so that's a i'm trying to see if there is you're saying we just give one level of deference rather than to just give the strickland deference and the difference there's still some deference in there terrorism dutchman's of there has that is i wonder how you respond to that but it has to be reasons judgment and has to be based on investigation that didn't happen here because we don't just have the n p t the narcissistic you have the substance abuse disorder you have the chronic trauma you have the potential organise any you know you have for things you know for very serious things here dr smith said there's no organic brain problem but you can understand i mean i can understand that i can understand it but judge you've got to persuade one you've got to try you've got to try i mean there are but i mean if try means you've got a sort of make make the argument no council can have a reasonable judgment that this argument is going to do more harm than good well i would submit that that judgment number one wasn't informed here and number two it's it was it if that was the judgment it was wrong it's not the judgment in effect of counsel should make in a case like this where you've got the ability to talk about the substance abuse of a kid who is five years old was already numbing his pain with drugs and alcohol that's a shocking fact why wasn't that prevented why wasn't that presented this kid from five years old to the time he was imprisoned in these lawyers didn't even know that he would know about it didn't know about this trauma diagnosis or maybe put on some testimony of the mother about the father being shot or stabbed when he was you know the beating that nobody testified about the impact on great brinkley i mean this was a kid who had some talent he had some talent and if somebody cared about him he might have become like his cousin quinn's brinkley and caught gotten out of this horrible upbringing he was sort of doomed to indoor he was numbing his pain when he was a teenager all through his life one juror might have cared about that now maybe they would have said the nurse assistant personality disorder in the nose and persuade us but you know what they might have said they might have said but it does explain it explains why this crime happened it explains perhaps why these other crimes happened i mean you know i'm a narcissist therefore i mean i cut this woman's throat and you know and then went off and used her a t m card sixteen times the same day that just doesn't connect you know what that connects with and i'm you know i'm serious here because this was a risk they face and this is in the record it connects with being either associate past path or psychopath and so i mean as i'm reading you know these notes where the lawyers say i met with smith or brams i think  like the poser and and you know the notes a psychopath i mean if you want to start talking about an art i mean if the if i'm the prosecutor and the defense starts talking about narcissism i say fine i'll grant let's talk about so ship path you know what that means antisocial personality disorder here's some characteristics which i mean you can't do this crime unless you have that you cannot i mean but i think wait so it's isn't there real danger i don't think so i think on this r to fight for your client you can't just say your mother loves you that's never going to work in a way that state particularly in this case where you have that nine one one call or not i mean i've never going to work i pathetically you could have a client who so unsympathetic to the jury that your best chance is just bring in the relatives and just plead for mercy or you could you can fight for your client you can try to respect that try to make narcissistic personality disorder an explanation for this i mean it's worked in other cases there's other kit court decisions i mean it's really not that much different from p t s d the problem is people don't like narcissists they don't like them because they do bad things but it is the price i know but but what difference does it make if  trauma that impacts you comes from the fact that you grew up on the streets of chicago with a parent that didn't love you and didn't care if you're abusing drugs or that you became that way because you fought in vietnam you know what difference does that why should that matter focused on the substance of think any one or two of them would have brought the waiting because you only got to convince one it's not an insurmountable it's not if you thought one of them was was counterproductive but you've done the other without having the other  you could have you could have made a better the problem is they did not make an informed decision i think they heard narcissist and they said that's too hard we don't do hard we're not going to work hard and i mean you've got to work hard for this guy to do that just a factual question i mean as i understand the record here how do you pronounce it desh back back back and thebes each meet with smith right now i don't think no that's i don't think the thi testimony your honor was he had nothing to do with the mitigation it was jack ok jack let's check meets with brams deck spoke on the phone with brams brams was retained by wingate and cameron right now i understand that history and ok so they talk on the phone and according to dec brams herself says this guy's mental history is not very helpful that i believe you're right that's dex recollection of brands has a different recollection which you'll see i'm sure you'll see right you know her testimony is i never reached any diagnosis and i saw a lot of problems here and i saw a lot to work with that's what she said now you know you're right though that is but thieves also testifies about what brams said i think but i don't think he knows what bram said first hand i think he was testifying about what he heard from my records my recollection just counsel it is that testimony was pretty clear that he didn't have anything to do with the mitigation that was dex job but that's not to say he didn't have knowledge that he shared his deposition but i don't believe that knowledge was first hand did  ideas and then didn't hear back in the i guess and i'm just trying to understand make sure i understand the facts i mean it wasn't like there was a total failure to look into a total dereliction in examining some of these things i mean you think that's a good first step you meet with them all together but then you got to spend a lot more time you got into in what i mean it's real so i mean this is a real simple mitigation theory i mean that's partly your point right it's really simple go in there and just you know make the jury understand how painful this is going to be for you he doesn't have a duty to coach them about that you know but i think he needs to understand i mean they would have opened up perhaps here's here's one example you know if you if you've got to build trust certainly with the mother certainly with the family i mean they maybe perhaps at one point then would open up about the substance abuse they never did these guys didn't even know about it they didn't even know about i mean you know you got to do that that's what that's what in effect of mitigation is it's not three hours with all due respect your honor it's not sufficient to spend three hours with the family and think that's good enough for mitigation in a capital case that may have been ok back in the one nine hundred eighty s but these guys go to these seminars they hear what they're taught they know they're supposed to do more than that they know that you know they're supposed to care what would be the case you would point us to that says that amount of investigation is inadequate i think this is the a b a frankly i'm just that's not terribly persuasive guidelines what the sixth amendment means i mean what what spoke to the defendant five family members and they spoke to three mental health witnesses that wasn't enough because they missed so much and it's a good first step what did what the perform a lot wrong bill they did i don't think they missed all that much more than here i mean i think it becomes a matter of piece i mean i really think if you took borderline person it's not borderline personality or lines a lot worse but n p p way were what it was in the wrong villa but i remember reading it that it was a whole lot of i mean i know you it's a fair answer to the question because it responds to that case yeah but i was pretty different i don't i don't think so i really don't i think these things become matters of degree and i think if the if the standard is one juror one i think boy i tell you what i think finding a mental health diagnosis even if it's access to is a big deal i think it's a big deal it's a big deal in a case like this having substance abuse disorder combining with it even a bigger deal having the history of trauma even better are that and having a family that loves you there you go and having the potential organ anik component you've got some the fight with you got to get up and fight it's your duty that's what the sixth amendment says doesn't say you can hear narcissism that's tough that's going to be hard we're giving up we're going to put on a mother that says he loves you no that's never going to work in a waiting state you've got to i'm sorry that's the words you're putting that's my get into it because it was hard well i think they i think i think that's and work but i think that's a fair inference from the evidence that they didn't want to do it because it's too hard i don't i think it's just i think it's at least as i understand what they're easy it's misstates thing slightly it's not that it's hard it's that it's likely to be in their judgment counterproductive to do you really think i mean my view of the record is they didn't know enough about it to even be able to say it would be counterproductive narcissism i don't think they had a working knowledge of it they have to know what it is they heard the word and they thought oh my god person that's terrible it's sort of the the kneejerk reaction nurses are never going to build explain that you know our system you that might be the sin whatever the but that might be your opportunity to get this guy a life sentence because you can now explain why he's done some of the things he's done because you know what that explanation be he's a n experts recognize and you know what else that condition isn't his fault people have been acquitted but ok he suffers from you know qur'an a very common condition why then does that make him you know able to do what he did to ms smith well i mean i think people with that kind of a mental health problem are impulsive that's antisocial actually well but i think it's also n p v and i think it's also p t s d you know what's the real difference in the way these disorders impact the people who they who they love or who they care about are similar p t s d assistant personality disorder borderline personality why does the p t s d one why would people be willing to accept that is somehow being mitigated because you see that a lot or i mean but don't you see the danger if you try to liken this this man to somebody who served in combat in vietnam can you imagine i'm not arguing that in our giving that you know it heaven forbid for the defense you have somebody who actually did a tour or who lost a lost relative there i mean that you talk about  dangers i hear you i mean i hear you i'm making a point to you as a judge knowing that i'm yeah things are not really all i'm trying to envision you know thinking this through what ok so what do you say to the jury about why he's a narcissist err go he did this horrible thing to this woman there's shouldn't he develop this disorder this mental health condition the serious mental health condition because of his upbringing because of the abuse in the medical act he suffered as a young boy beginning with that childhood induced alcohol substance abuse problem that in itself was abuse that his family permitted to be for him to endure that all that and the trauma that the the murder of the father of the death of the grim the beloved grandmother then being sort of  to fend for yourself at age eleven i mean come on age eleven fend for yourself how do you know you pick your pain you drink and you take drugs at age eleven and so what happens to people who do that when they don't have the love and the  emotional support the us we all had they develop these kind of mental health conditions the great brinkley about their tough things and those kinds of mental health conditions can cause you to hurt people you love but the development of those mental health conditions isn't your fault it's not your fault it's because of how you were raised that's what an effect of counsel has to do and get up and fight that's your job you could have i mean your points it's it's it's strongly put forward i'm thinking it it sounds like what you what your standard is is a brilliant lawyer as opposed to a pretty good l i mean some folks the lawyer who is pretty good at winning cases could say you know that's not the strategy that's going to win with the jurors in my jurisdiction and you know i've been a lawyer for twenty years or whatever it's been and i just my evaluation is that we're better off doing this than getting into this intellectual stuff that the brilliant lawyers like you could articulate very forcefully i'm better shows you've got lawyers that care i just don't think you've got that record here and that's why i think the performance prong goes our way and i think the prejudice is there you could have convinced if you tried you could have convinced one person and you know what else you would have if you were prepare and you were prepared to do that you would have picked a jury that was more that would have known about substance abuse coming up that would have known trump was going to be part of this that would have known narcissistic personality disorder was going to be discussed you would have had your whole case result revolve around these issues and you would have had a jury that was you know ready to think about those issues and if the standard is i just have to find one of these people these good people who are  but not this case this case you had a lot more i really do think you do your hon honor i think that as we've set forth in our brief the appropriate standard in this case is not to review it's adopted deference to the ohio supreme court's decision the ohio supreme court was presented with this claim they're presented with the claim that counsel were ineffective in their mitigation presentation and what they found they held that council could not be faulted for not presenting additional mitigating evidence because the record does not disclose that such evidence was available they further said the record establishes that counsel fully inquired into brinkley's background and consulted appropriate experts in this case the trial court record included that his defense attorneys had hired an investigator a psychiatrist and a psychologist so they had two mental health experts as well as an investigator in addition before their mitigation presentation the attorneys informed the judge in chambers that they had consulted with the experts and had made a determination after consulting with those experts that they were not going to present evidence of a mental defect or mental retardation so there was evidence within the record that made this a proper claim to bring on direct appeal and the rule i think that part of the confusion over going to new standard is that there are two types of race judicata and ohio there's a race to the kata for a claim you could have or should have raised but did not and there's race judicata for a claim that you did have that you did raise previously in the has been says this claim has been presented on direct review and is before the ohio supreme court has post conviction proceedings an appeal were done before the house supreme court had issued its decision so we know that they consider the claims the second third and fourth claims of a claim eleven in the petition in the post in the his petition or excuse me to be the same as the claim that was presented to the ohio supreme court they were wrong about if they were wrong about their issue  yes they do so you might in your but the the collateral trial court doesn't really need to distinguish that particularly in order to decide if it's rusty because if it's either one they they can get clues right so they could just say ambiguously roast judicata means you don't win on this and not be clear which one they're talking about because we need to know later which one they're talking about but they don't need to in order to decide the case  cracked they don't in order to destroy it that's what i'm saying so if if if they just said it but said it wrong it would be so for their purposes that would be harmless or right so we really ought to be somewhat free and second guessing which kind they're talking about by looking at the nature of i think i understand your question and i'll try to answer it and hopefully you can you'll correct me i'm sure if i'm wrong if they were wrong about the type of race  that they were applying and suit so we would look at the claims that were presented in post conviction to see if they were properly dismissed that still supports the race judicata application in this case because in order to overcome our race should caught a bar the defendant needs to not just present additional evidence he can't just add some affidavits he has to present additional evidence that demonstrates he could not have brought the claim in direct appeal and that was not the type of evidence presented in this post conviction relief petition to the state trial court the evidence he presented so in here because he tries to present the claim on direct appeal he has to show that there was there was not reasonable to do so out that he needed to have this additional evidence to support his initial evidence would be like  record and the big the problem that mr brinkley faces is that the affidavits he did present are cumulative to the evidence that was presented during the trial i think samples that wasn't would be something some evidence of the strategic thinking of the lawyer something that you would be able to raise on direct appeal is that the idea i think it's i think more typically what you would see something more akin to a brady claim evidence that he could not have found or  i think it's difficult to do that way when we at the federal level the line to hear things in the on the direct appeal it's because you don't really know whether it was ineffective assistance of counsel mostly asked the lawyer why you did it i think that it would be difficult to do in this case because the attorneys said on the record that they were making a strategic decision and they did under strickland they don't need to explain what their the full thinking behind their strategic decision as competent counsel they made a strategic decision not to present this if this were a case where they had not conducted a reason that testimony of the collateral they made it at the trial stage your honor i mean when did that come up in the trial stage before the mitigation presentation began they stated on the record that they had consulted with with experts and had made this decision not to present mental health testimony so why they did not they could be crucial  it could be in a case where you didn't have other evidence that they had conducted an investigation and in this case they had retained the services of three separate an investigator into to support their investigation the type of cl if they had been asked the question which wasn't relevant at that stage i understand that they could have said we didn't do it because we thought narcissism would be a turn off for the jury one answer or they could have answered would have been good but we thought the other was better and it was hard in his words all right and because it was hard we thought you know we didn't have enough time before we'd be better off interviewing the mothers of those two answers would be real different for purposes of whether there was ineffective assistance of counsel but you really don't get a chance to ask those questions until still collateral review right well that's why i'm wondering evidence in the direct appeal correct correct ok so this is his chance to revive and he he he diligently tries to present this conviction and he gets the bombs rush judicata we've already done this so when is he supposed to have a chance to present this evidence to rebut well nitpick about whether or not some of his evidence was diligently presented but his chance was determination quite well in this circumstance because what the court did the court said did not say you've never presented this before they said this is the same claim with cumulative evidence to that presented in the trial merits of the evidence they looked at the affidavits provided by his mother his aunt and his cousin and said this you're presenting the same claim to us it's this it's cumulative what you presented at  you're saying as i understand it that that rejection was in fact an implicit rejection on the merits right right which i guess then kicks in twenty two fifty four d or b whichever n which is for sixty f third seven eighty nine is the closest that i found to answering that question because usually what happens is the ratio to cause a bar is applied because it was not raised court which is why we why we don't get to know her review in this case the merits determination was made by the ohio supreme court and that's what the district court judge found as well was that claim eleven  was raised and decided by the ohio supreme court claims eleven b c and d the second third and fourth parts of his ineffective assistance of counsel claims were raised and rejected as race judicata because they had already been ohio supreme court so are you saying we have a meretz determination to be seen by the ohio supreme court because of the first yes because there are sub they're simply a different way of stating the same claim which is that he is unhappy with the mitigation presentation that was made but i mean that you're familiar with the sheppard case which is to come right yes i mean this cuts both ways you know in that case they want to tweak their theory a little bit and add some reliance on transcripts that were not around in the state court actually were not around from start to forget the particulars right but  said that part of the claims he want to consider on rule sixty b were new claims because he relied on different evidence than the evidence that the district  first time why would that apply here and i mean it's the same principle it's got to go both ways right i mean obviously he's relying on different evidence in the post conviction perceiving than he did in the direct between the application of ohio this race judicata law and the adopt a different standard so his his claims eleven b c and d were presented in post conviction and were rejected for having already been raised in the ohio supreme court the and that's how ohio applies their race to catalog these are claims that are the same as the merits determination your evidence does not change that standard you do not have basically you don't have to your evidence isn't meeting that standard versus the adopt a standard of you that you've not presented this evidence to state court and you all you're doing is changing well i guess that raises an interesting situation because as i understand what you're saying and i know this stuff is like you know complicated but what you seem to be saying is the ohio court of appeals says has to be seeing the same claim that you lost with eleven however what i'm suggesting which means you know you know what state courts i mean your rules can be whatever they are but the claim was presented to you in the only way it could have been presented because you couldn't bring all this evidence in the direct appeal and for your own reasons you chose not previously determined merit situation here i believe they have said that i believe that they were not all right i think that's right right i think of cases where that would clearly be right for instance if the direct appeal they said this was not ineffective assistance of counsel because for instance you're raising a claim that has no merit under our law right and if they said that then you come on collateral review and you raise the same ineffect counsel claim they would say you failed to raise it they'd say you raised it we resolved it and or the higher court resolved it and i'm not going to resolve again in that case i think there are cases more or less like that that have just said that's you can still go on hey b s and make that argument because you presented it in the end and it was a marriage thing in the all rest judicata said was that it's already been decided which is different from you never raised aspect of you never raised it but the trouble with doing that analysis in the context of ineffective assistance of counsel is that generally speaking in order for your ineffective assistance of counsel claim to have some you've got to have some testimony as to why the lawyer did or didn't do something all right so that so that it makes sense only in limited cases for an ineffective assistance of counsel case to be brought and thoroughly disposed of without a further chance at it at the direct appeal level because you may be able to show something the horrors of the record and that later all right so that's why he's treating these sort of two different claims it doesn't really answer that to say that certain types of claims you can't do that but that the distinguishing factor in this case is that the decision to raise this on direct appeal was a decision made by his counsel with full knowledge of ohio law that he would not be able to raise this claim again in post conviction was such that you can raise it both times he can resist there's more and as long as there's more  could not have appealed the constitutional claim based on the information in the original record this mr brinkley's direct appellate attorney determined that he could raise and should raise the claim on direct appeal based on the evidence in the record and the claim of ineffective assistance of dearth of appellate counsel direct appeal counsel was raised and rejected by the by the district court like her started i mean if this is right it seems like we're holding these people to a possible standard so i mean i guess you're saying is the most fatal mistake was bringing this in the direct i disagree that it's a fatal mistake because i think the proper place to bring it was in the direct appeal because these lawyers had put in the record that they were making a decision not to present mental health evidence and because they then presented a substantial mitigation case about mr brinkley's background with knowledge of their interactions with mr brinkley their chance of cross examining at the evidence that was presented to the post conviction court and to the heaviest court they were not wrong to do that because the evidence supports the determination that they made to limit the mitigation evidence presented to the presentation of mr brinkley's mother and aunt and sister  and his unsworn statement presenting him as a family man who needed to be around to support and provide for his family the evidence in the post conviction record is cumulative of that and the narcissistic personality disorder i certainly don't need to get into the fact that it's not a strong mitigator it's a very the substance abuse mitigator is is always a double i think the substance abuse mitigator in  i don't think it's a way which which side of the shorters which side of the sword sharp or without knowing that it's even there there's no evidence in the record that they didn't know about his substance abuse issues i mean number one mr brinkley is certainly the person most able to inform them i've been drinking and using cocaine and the like all kinds of convictions for him i'm mixing that up with another case he has a number of convictions but his convictions are for violent offenses he's been in and out of prison the majority of his adult life at that before even before this and as a child but his family members when they talked about his substance abuse issues it's not a sympathetic case as a result of his substance abuse issues his mother says the she had to cash in her life insurance policy to pay off drug dealers who were coming after him and his family that that's one of the reasons that she decided to turn him in and file a juvenile charges and th that's not in her direct testimony and that's and i apologize i don't remember offhand if it's either in her i believe it's in her affidavit to the post conviction court she mentions that there was a three thousand dollars debt and in order to pay it off so that his family members his wife and children would be left alone she cashed in her life insurance policy it doesn't paint the picture of a sympathetic individual and it ties into the state's case the specifications being escape and and the state's theory that mr brinkley killed shauntay smith not because he was a jealous lover but because when he saw and she'll two weeks before this this murder he said i'm going to get her i'm going to get her to pay my bond i'm going to kill her and i'm going to leave town and dr brams and both dr smith say that he comes across as manipulative that narcissistic personality includes feeling entitled and using people he he manipulated women and got them to pay his bills for him so this evidence of his substance abuse completely plays into it and the evidence of his argument or of the argument you're making now goes to the second part of the argument  does i'm sorry yes that tried really hard you could come up with a forceful argument that had some teeth to can you respond yes there are and there's always going to be hindsight and there's always a different medication theory to present this in this case his attorneys didn't just they didn't just put on mom and say hey mom tell us how much you love him on the record the prosecutor mentions that the courtroom was very emotional that morning and lots of tears were shed the prosecutor says that in his closing statement to the jury there's a ten minute break taken during the mother's testimony where it's clear that she stopped mid sentence and the depositions afterwards both attorneys describe that the entire courtroom was in tears mr brinkley says from from his seat a defense bar the heel of his mother i love you mama and thanks his family members for coming and in his own unsworn statement reiterate the theme that his attorneys have taken which is that he is a loving family member his four children he has nieces he wants to love and support he picks up that same theme i also know that at his sentencing he says that his story changes and when he is sentenced marketable term script yes in his sentencing he says after he thanked his the prosecutor the judge and his attorneys at the end of his medication presentation when mr brinkley returns for sentencing he says that he did not grow up in poverty he did not grow up in the projects his attorney told his family to say that his sister has no idea about growing up in the projects and then says quote i had a beautiful childhood i was raised by beautiful people that's completely contradictory theory of childhood trauma and a person who grew up with underlying substance abuse issues it's unusual that they describe themselves as having a beautiful childhood and it points to the fact that at the sentencing he says that his attorneys told his family of the true after the jury has voted to sentence him to death advised yes the judge actually delivers the yes before the judge has has handed down his sentence the judge asks him if you would like the opportunity to  correct life and they can and before the judge has pronounced his son's he says i didn't grow up in poverty my attorney told my family to say that and quote i had a beautiful childhood i was raised by beautiful people and so completely discards the theory if there was any sort of childhood trauma so i mean what do we do with that you leave her there we say ok therefore what he said is true and this wouldn't work or i mean it's bizarre i don't i don't know what we're supposed to do with that i mean it's a barb it's a bizarre statement but it also points to and it does this strickland why we have the strickland standard is because harmed his family is wants to do something to palliate it at the end because they want him to think that they're responsible for his crimes but he doesn't he doesn't just say well that shows th statement is in line with this loving family loving provider theory a substance abuse problem that manifests itself like his did resulting in death resulting in a number of criminal convictions undermines the idea that this is a man who needs to be around to provide for his family that's the theme repeatedly presented by these family members please don't take him from us please don't take him from us we love him we need him he needs to be here as a support for us and our children and  repeat that he says i love my wife i love my four children i want to meet my niece i want to be around for these people and i think at one point he asked the jury you know you're going to do what you're going to do just don't take me away from my mother before she passes so to then get up and say none of that was true after you've repeated the same theme show that mean the importance of strickland standard is not to get up here and second guess the decisions that those attorneys made based on their reasonable investigation their discussions with the attorney with his family members their discussions with mr brinkley and their discussions with experts and say well you know what might have worked better what might have worked w  is this the point of strickland is to prevent continuously retrying these cases with what might have worked differently or might have worked better and why we give deference investigation point of and specifically you heard mr sweeney trip to chicago to visit with family members that you mentioned to his attorneys also spoke with family members on the phone they presented a number of family member witnesses and on the record even just limiting it to the record review it's apparent that there are aware of his background there aware that he was raised by a young mother his father died very young and you can see in the transcript that they try to get into evidence that his father was stabbed to death by his father's girlfriend her father sister's boyfriend i believe there are they know about his background the only evidence that they can point to as his attorneys not having found is a set of high school transcripts from a high school that he only spent a short period of time and there's no other school records provided even in behaviors case and dr elders report dr andrus report was available on post conviction but was not provided to the state courts and dr anderson report is the only expert report that mentions organic brain damage and is based on a one hour interview for a disability claim what about the psychological is and it is attorney attorney jack i agree that led to mitigation investigation he also he did work with attorney thieves but they both testified in haiti is that after the jury returned a guilty verdict mr brinkley refused to speak to attorney thieves and that's why mr jack led the mitigation development well presumably i mean you know they're doing something before the guilty verdict comes in they are they're doing they're  i mean i don't know if if there is information about how long they talk but when they are to posed they attack and thieves both describe being aware of this mental health issue and deciding that that was it was they were not going to present expert testimony because it would open the door to presentation about brinkley's convictions his previous convictions which are violent and brutal and would play and not only with  narcissistic personality disorder play into the state's theory behind the motivation behind these this murder it would they describe that it would give the jury additional reason to sentence him to  investigator both of them are involved in reviewing this and making a decision and speaking with other attorneys about a mitigation presentation and making the decision based on their investigation and the kind of convictions that he has which federal hate yes that they knew the state was aware of his convictions and the background of his convictions because the state had provided that information to them they were provided in discovery his previous convictions and we're concerned that at putting an expert on the stand one of the questions the prosecutor could ask is what's the basis of your expertise part of the basis is that expertise would be a review of his criminal record which included these convictions and didn't want to open the door to this is not a case where they simply sat on their hands or said it would be easier to just talk to mom and we don't have to do anything else they they did look for this evidence you agree that we should consider the testimony in the federal evidence your no i do not because i do we bring in all the stuff we just talked about only if you you would only consider that evidence if you found that he was diligent in trying to present it to the court i mean so aside because he was not diligent review should be limited to the affidavits presented to the state's post conviction as the state court imposed conviction and the reason that that shows that they made a reasonable investigation is because those affidavits are cumulative  or relevant in some cases to the evidence presented at trial there's no demonstration of evidence that they should have been aware of but were not especially given that they had to the health experts in an investigator working for them thank you thank you place the court gist of the responses to the points i was so this made to remember all this was a case where the jury came back in thirty minutes for that ok so i think that speaks to  human i understand that there may have been some crying in the court room and there may have been some emotions exhibited but the fact of the matter is the jury simply did not was not persuaded in any way shape or form but by what happened here which is a doesn't mean it's the lawyers fault necessarily it it may not i can only imagine what it must have been like to hear this nine one one call to hear the mother describe what it was like i mean i'm not trying to make it difficult for you but that is it's not it's not sort of taking unfair advantage i think it's part of what the jury heard and so as we evaluate prejudice i mean that's a big part of it i mean one can only imagine i mean the mother going in and sees or daughter like i mean they heard that you know you read this that there was some emotion in this courtroom and that but i think in in evaluating prejudice and performance i think you have to put that in the perspective of what the case was going to be and that was going to be the case that we're going to hear that mother and that  call in so why in the world would you even think i haven't grady's mother say she loves and was ever going to be enough to me that's obvious and that's a that's a dead bang loser if that's your theory if you go in thinking that's going to work you're not thinking very clearly because that's never going to work when you listen to that my one one call that's the sort of at this thing that's so obvious i mean come on that's obvious you can't go in thinking that's your winning theory and so you had what did you have i think and i think the  assistant a g is mistaken i don't believe the evidence supports the notion that decker thieves had any idea that there was a narcissistic personality disorder that was capable of being diagnosed that simply is not in  now what i think is on the record is that jack and or thieves knew and testified in their depositions that they had heard the word narcissism from joey brahms that's in there and that they heard at her that you know this might be so difficult they that's in there but the actual existence of a mental health diagnosis on axis two by a competent professional who examined this person they had no knowledge of that  of meeting with say narcissistic psychopath i mean he doesn't have to spell it out in d s m terms i mean well but that that he how do we say no he didn't he didn't know he didn't do enough to know he was a narcissist but here's what the testimony was julie brown said i spoke to him i had diagnosed anything i may have said those words i've come to any diagnosis yet i had not come to any diagnosis yet that's her testimony that's the truth she didn't have enough to work with she just started a she said i had just scratched the surface i saw some things that made me very made this presented to me a case that's going to be very difficult there's a lot of challenges but there's a lot to work with she saw the attachment problems with catchment issues he had she saw the issues of the potential organic aspect of it all of that she saw she's a very skilled professional and she she would have been able had she been given the chance to come up and present evidence in mitigation but she never was given that chance at dak testifies that brahms told him that brinkley's mental health background would have been better for the prosecution and the know i don't think so i don't think so i think again your honor then you go find another expert you find somebody who's going to tell you that what we know about this guy which is that he's got it in he's got a mental health condition that the jury needed to hear about that's what they should have done if that in fact did happen they didn't do that well maybe they did they got douglas smith what do they do with him he was actually an m d psych what did they do with him is it your judgment according to them they made a judgment that s d to go meet with brinkley he met with brinkley for four hours or so and was prepared to begin to put a report together and never heard back his next communication with back he called them and said what's  at all this case is over he already testified that's it there's no judgment there there's no judgment there there's no communication there deck never even knew what smith did this again that's why i made the point about this being his first capital case you know you've got a guy doug smith this is first capital case he's a psychiatry is he could potentially help you here and you put him on this project and then you let him go and you never talk to him again that's what that did that's the fact that i don't think that's refuted i don't think that's i don't think that's even questioned as being accurate in terms of what happened here so if that's what happened that's speeches why i mean that's that's really the nub of this was it a considered judgment that you know what th psychological stuff is just not going to help us in this case i mean i know you disagree with the judgment but if it was a judgment then that's one thing if it was he just stopped working right i think the other i think the inference is it could be that that even if  argument is if you mean a judgment i would argue in particular with respect to julie brahms that was an uninformed judgment because julie brahms or herself testified i just precious surface how can you make a judgment when you're so i can only scratched the surface and wasn't even prepared to make any kind of diagnosis or do anything like that that's what happened here that that's a critical breakdown because i do think that the mental health aspect of this coupled with the substance abuse coupled with the trauma coupled with the potential organic aspect coupled with the family the loss of them because you don't leave that out would it matter if your target if your if your standard isn't every all twelve people but just one people one person that's all you need you could have met that standard and so you have thirty minutes for death you know you didn't come close you didn't try you didn't do what effect of council should have done let me just say a couple more things about the rest you because i don't know maybe i don't have the time i would ask the court to look at the herring decision we filed a notice on yesterday night it's a supreme court decision out of ohio and it's a case where herring raised in direct appeal the ineffective assistance of counsel in mitigation it was rejected on the merits he then went in the post conviction and raised it again with more evidence just like brinkley did herring ultimately got relief the house supreme court in the second haring decision which just came out not too long ago in two thousand and fourteen granted him relief and it did so because ohio's rescued a kind of principles would never bar that type of a claim you get relief on those claims and so the state courts that looked at grady's case got these rescue to cut a long and so this court's review is the novo this court's review is the novo in that close in a situation where you can look back to all of these decisions this court has made where relief has been granted in cases like this because performance and prejudice is met we recognize as capital little lawyers that we lose a lot of these cases but we lose because twenty to fifty four deep in a lot of them in a lot of these cases but this case isn't one this is a case where where where de novo review was applied it's a strong case of ineffective assistance even if you were to conclude that twenty two fifty four need apply we would still prevail because the state court's decision which of decisions would be unreasonabl