read the authorities cited in your briefs and looked at the record so in the time available to you get straight to the heart of your argument you're not going to waive any during your if there is something in a five minute break that we've not had an opportunity to discuss of course we do allow for more time on these capital appeals so hopefully everyone will get an opportunity to address the most important points please don't treat the red light as  leveland we come and speak with this place please the court judge loveland on behalf of petitioner appellate nonny cleveland lance this case in voles a fundamental abdication of responsibility and a fundamental breakdown of the adversarial process at the sentencing phase of mr lance's trial in such a way that there is no way we submit that any court could have any reasonable confidence in the sentence of death that was imposed on the street lamps the facts are essentially undisputed in certain critical regards donek lieven lance is someone who has a border on i q and according to the expert testimony of both the state's expert and experts called by the defen proceeding suffers from dementia due to multiple etiologies under the diagnosis of the d s m four are there both sides reach that conclusion interestingly the georgia supreme court never mentions the word dementia it doesn't appear anywhere in the decision of the court doesn't appear anywhere in judge hans decision either we submit that there were ample and the evidence is  flags that should have served as a warning to any counsel to conduct an investigation into the facts and materials that were readily available as the state  included the fact that mr lance had suffered a gunshot to his head in one nine hundred ninety three with a bullet still lodged in his neck that he had other traumas to his head because of his avocation of being a dirt track racer and it had a number of accidents and frankly had other head injuries as a result of alter cations one which involved being hit in the head with a log wrench so another i think it would be helpful to talk about prejudice and particularly whether the state courts could have reasonably determined that there was not prejudice because of the failure to medication here that we've seen a lot of these talks before and have said and it ruled that the sort that can be a double edged sword alcohol abuse impulsiveness those sorts of things so why is this case different from and in the sense that it would have been and reasonable for the state court to have concluded that  client suffered no prejudice certainly your own i think on the prejudice prong and i'm assuming from your question on or we can start from the premise that there was in fact nothing done at the sentencing phase by objectively unreasonable that it is an unreasonable application of the controlling law to say there was no prejudice in this case or that it was an unreasonable determination of the facts based on the record either one of those two prongs takes us to the unreasonable terminations on prejudice and let me explain first by reference to the political authorities we think the case that the most compelling supreme court authority is a case the georgia supreme court did not discuss at all which is the repeal of the you know they don't i would submit your i was made your honor that if we're going to evaluate whether it is a reasonable determination of the facts there has to be some standard some basis they could say nothing and the inquiry would be say but they did not say nothing they in fact said specific things and what they said was an on a reasonable determination of the facts for example not only did they not mention dimentia but they went the other way and talked about mild neurological x they mischaracterized of the testimony and the evidence now why is that lead to prejudice because i understand your honor's point and i'd say the most compelling supreme court case on this is the repeal of case the repeal the case basically looks at facts of course each one of these cases has different facts that different mix of facts but involves a situation where counsel although they had none investigation all they had done certain levels of investigation and had done some consulting with mental health experts didn't follow red flags that were readily available to them to research other things and other evidence and that other evidence interesting later on or led directly to a determination of one of the problems with grumpy is that is  to not suffer there's no question there's a difference in terms of the upbringing there's no difference there are different again the standard that should be a political here is did mr lance did he suffer prejudice because of the absence of an individualized determination at the sentencing phase and given that there was nothing said at the sentencing phase we believe it's clear he did suffer because of the absence of that individualized determination from people it does stand for the fact that once the council did the investigation they learned of organic brain damage and a borderline i q some of the same factors we have here this court in the pharaoh versus hall case does in fact do exactly what we're asking the court to do here which is look at a certain checked facts and circumstances and determine that the georgia supreme court's determination was an unreasonable application of strickland with regard to both ineffective assistance and prejudice and overturned that decision so that's exactly the same standard and again while there are different facts and there's a mix of facts that you can look at under any of these cases that is the standard that was not in this case we come back to the fact that mr lance effectively had nothing done at the sentencing phase at all now the state says and they make a compelling argument that there are many aggravating circumstances here there are many things that go on their side of the ledger which is precisely why for there to be any level of confidence mr lance was entitle to have the mitigating factors put on his side of the ledger as well while we're talking about the letter i've read the georg stein's opinion over and over and over again and i know i can't as we know the supreme court said you've got to put all the mitigating evidence into the hopper did she considered the the good character evidence did she put that in the hopper or on reconsider rights or can you tell i can't tell that she puts that in the hopper i can tell that she that she a valuation of court does of value weight the mental health evidence but does so in a way which which is vastly different from how the state hey vs court who heard the evidence characterized it the state hey vs the judge who heard the evidence said this is compelling testimony that should have been heard by a jury making a life and death decision and he clearly found that based on the testimony and the symmetry the fact that the state's own witness said that mr lance suffered from dementia was something that clearly the jury needed to hear in deciding whether he would live or die and let me explain one more reason why it's prejudicial your honor and just prior to go back to your question if you read the transcript of this prosecution's closing argument in the sentencing phase of this case what he said is the following he said donnie lance was a cold calculating murderer who planned this murder for eight years and who planned it in such a way and so carefully planned it that he almost got away with it but you didn't let him get away with it and you caught him their whole states the state's entire case is this man is a carefully calculating monster who is doing this and planned all of this and what the testimony of the hay vs case says is he's not capable of that he has significant frontal lobe dysfunction which prevents him from doing that sort of detailed executive ory planning in this case he would have had to have done this so it goes directly to the fundamental theory of the prosecution at the sentencing phase and it was not heard by the jury so in that and assessing whether when the prosecutor says he is a cold calculating murderer who planned this for eight years and planned each step of it he planned to dispose of the shoes he planned to get rid of the evidence he planned to do all of these things what they didn't hear was he's got dementia and had it at the time and had sued dear frontal lobe dysfunction that affects his executor or functioning so i believe that you know there  substantial aggravation here you agree i agree there is there are substantial aggravating factors here you know question i mean there's been a long history of abuse of one of these victims right there were many instances that were brought up by the state there were there were three in this overall record there was also allegations of abuse the other way towards mr lance which didn't come into the trial because the judge ruled that he wasn't going to try the victims in that regard but that but yes this was a very tense as on the victim's terms not it's not like the victims are coming over to your client's place right  battered into basically on recognizable i'm having a hard time understanding how the mental impairment you're talking about would have necessarily led the state court to weigh the aggravation differently that not to do so would be on reasonable well again i  believe that is in large part because the state has put its information on the aggravation side that if there's going to be an adversarial process there needs to be the information on the other side as well now it may well court could have reasonably determined that act it wouldn't have made a difference that is correct and as i'm saying i believe the standard as this court articulated in farrel the  l and other cases would say no this was an reasonable determination that daniel's case and other cases that we cite stand for the proposition i mean there is broad deference i understand that on the a p a there is broad deference to the state court but it is not unfettered it is not a situation where the federal court then says we don't touch this you do have to ask the question is it objectively and reasonable to reach this conclusion and we s that where the where the state court has mischaracterized the evidence has simply not addressed many aspects of the mitigation evidence at all has not ruled that the state which made its determination is that any of those determinations were clearly erroneous as not to get on a single one of them ruled that the state a v s judge was clearly erroneous in his reading of the facts and he heard all of the witnesses testimony it's an objective leon a reasonable determination of the facts to take them and write them as the georgia supreme court did it cannot be supported by the evidence in the record now that isn't that's a different issue i believe your honor from the one that you've asked about side and i've got some stuff to put on this side and one of them you know maybe a double edged issue i'm a lot better off putting it on the table than i am leaving the table bare and that's what was done in this case was the table was completely but are you really necessarily a lot better off putting a double edge sword on i mean let me let me explain it this way if you look at what the experts th say that he suffers from significant mental impairments that question that it does have a significant impact on both his ability to have planned and executed this crime so it feeds into a residual doubt aspect we're gargle so why it feeds into the residual doubt aspect and he has mental impairments that are such that whether his ability to resist impulses etc is highly questionable now under that circumstance  the jury to see the whole picture the whole picture is he's had significant head trauma some of which he had nothing to do it they didn't shoot himself in the back of the head it in himself in the back of the head with a luxury ranch those things are significant head trauma traumatic brain injury that he suffered did he abuse alcohol as well yes i still think the jury seeing the entire picture is what is necessary here now if i've been on the defense side not that i've gotten the head trauma and not brought the alcohol abuse in i might have tried but frankly that's made up out of whole cloth this man had a gunshot wound to his head that is apparent in the medical records even the george from port agrees there would be a preliminary psychological evaluation that would pick up a borderline which is what was done here and when the further testing and evaluation is done it leads to this conclusion so i don't think there's any way that statement that a georgia court would not have authorize funds to do neurological testing of the sort that was done when somebody did anything in this case there's just no support for that in the record what there is in the record is dr more tell the state's witness saying he does this sort of neuropsychological evaluation all  time all over the country there's testimony the record dr weinstein that he does this type of about you ation in every death penalty case that he's involved in that it's standard to do it is there and in this case whether it would be absolutely standard in every case we've got red flags that jump off the page and say you need to do this i don't believe that consistent with the supreme court's decision in aka a in the more recent decision in that williams i mean for the if a court order say psychiatric psychological testing that's a drop in itself a suffered an independent violation of constitutional rights i don't think there's any way that can be a reasonable application of out of control in federal law but that's an assumption and her opinion really it's it's again there's nothing in the record that that is tied to there's not the court doesn't purport to cite anything is just a statement that they doubt that this sort of testing would have been authorized and i say i don't think there's any way that doubt can be reconciled with control in federal law so when you go through that i think that the first prong that you wouldn't do the evaluation ignores the red flags that are on peel and other cases say you have to pay attention to it and then when you get to the second prong which is ok had the testing been done it wouldn't have mattered interestingly the court doesn't deal at all with the fact that in georgia a death penalty decision has to be unanimous and you know the standard of reasonable probability of a different outcome is could one would one juror hearing all of this is a reasonable probability that one juror says you know i don't think we should execute someone who has dementia and had it at the time of the crime i think it's the mere fact that it's hard to even say those words is an actual leisure while the georgia supreme court never mentions the word dementia and why judge who then tracks the door supreme court decision doesn't really discuss that either and why frankly the state in this briefing really doesn't discuss that fact either there's pretty substantial evidence to contradict it though i mean you can consider it i mean look he went over to the house right and systematically murdered them right as the georgia supreme court said he in a manner that he had threatened to do to one of the victims previously there there is a lot about this that would have been considered in aggravation in the mix that would have contradicted the degree that he couldn't have pre planned the event they would have or the jury would have heard all of that it and the jury having heard all of that has then a basis of residual doubt and one question is the georgia supreme court in their analysis of the mental health issue with regard to the fact innocent counsel it is not an unreasonable application of law it is not based on unreasonable terminations fact it is based on almost an eighty and eighty would be a normal lot so range of normal and shorter answer might be yes that's not right yes that's not right and by one point but i don't want to get it confused with borderline intelligen or i q of seventy eight or seventy nine and borderline intellectual disability because those are two separate things we have no functioning prong here i mean as the door supreme court noted in their opinion about all the review  edits the only time he functions doesn't function normally in society is when he's committing criminal behavior this is a man who owned his own company quite an entrepreneur actually supported his children but i do find it odd  out the experts factual findings when it did its what was conceivably available that sort of the second alternative funding and when it laid it all out what they said was he would have their said he would have may have problems planning it but nobody ever said he couldn't plan this crime nobody ever said he was unable to carry out this crime what dr martell said was that he had dementia and he had memory problems and that his main significant problem was being able to remember names of stuff dysnomia for most of you know recall a certain name if you went to the grocery store without a list he may not remember everything he was supposed to get  dr martell is the one that really discusses memory the rest of them talk about frontal lobe disorder and planning and impulse control but even their findings they are as noted by the district court are very equivocal like i said they don't  couldn't do it they said it's unlikely that it could do it and the georgia supreme court listed all that out and took that into consideration in conducting its prejudiced analysis do you want to ask you this i'm question i asked mr lowell and do you think th when when the george brink or re would the mitigation evidence they included the good character evidence they did not but that was not raised on a on appeal in this case because relief was granted as to the mental health  he did not write a claim of character can i ask you do you agree that there was deficient performance in this case i would have never conceded and still to this day i will not say it's my strongest argument  but i don't i don't concede it in a while since you've really had to worry about it right that's true it's true because well that's not that's not going to carry the day here and i'm well aware of that but and i say that and it's kind of looking at what the door supreme court did in their initial analysis which i'll say it follows l h is that you don't look at what you could have come up with you have to look at under strickland and that's what ellis does it's a fact that application of stric this is a lot of resembles but what would a reasonable of tony have done conducting a reasonable investigation what he what he and reasonable likelihood have obtained and or presented and that's what the door supreme court did it conducted that analysis saying what would a reasonable attorney conducting a reasonable you know i don't read it that way i think they're analyzing what a reasonable trollop judge would have done as opposed to what the lawyer would i mean i think they do but i think he says you know if the if the trial can also had known and it's not clear in the record what trial counsel did know and what he didn't know but if he had known that petitioner had rick sometimes when he was drinking and driving sometimes when he was eluding police officers if they had known that one time he had ingested fumes if they think that one time he siphoned gas and swallowed it as a child the alcohol abuse that he was shot in the head then that he had gone to georg original and actually checked himself into georgia regional more or less to try to avoid prison but they said if you knew all that it's doubtful that result trial counsel would have obtained a psychological evaluation because the records from georgia be do friend would know where he was there for eight days what the course that he's there for eight days and they did a psychological assessment of him and it turns up nothing except he has an adjustment disorder based on his divorce from his wife but you agree that that is not the type of evaluation that would be done even for a competent compas if you stand trial is different i would assume they were definitely be different but you've still got absolutely nothing showing up in this on the door spring course that there's nothing after eight days showing up there's also you have to prioritize your funds and oh what mr brennan did say just what and again i'm not arguing deficiency but what he did say was i had to is directly in line with all the cases in the press in this court where a petitioner or a diff or a defendant gets a competency evaluation and trial cayle soul is talking with that defendant and has no indication of any mental health problems and time after time after time this court has said recent counsel doesn't have to follow through with a mental health that about a ration if there's nothing they're saying but you've already agreed that's what he got ninety ninety three was not the same as would be conducted for i don't think it is a compas evaluation but i think taken those two together take it that there is nothing in the record showing us any mental health problems nothing even after this evaluation that you've got to prioritize your  and that dr more telling some would say that all of the abuse and that type of thing would suggest that there is some kind of a mental health issue there i mean well i tend to agree with you that on the prejudice prong there there may be a you know there may be a problem for the petitioner because i don't know that he can show that it's an unreasonable application but i'm deficient performance i mean i think you know counsel at least had the obligation to investigate this a little bit i mean there's nothing right and i'm not i'm not arguing deficient performance i'm just talking about the georgia supreme court's founding of reasonable counsel may not have gone further and if you don't go further you're not going to be on this same type of  sort of their completion of what i call the first there are now i guess i don't find that to be reasonable but but it it may not matter ultimately and it will and they all in dr martineau which the court also credits or or notes his testimony where he says you know the deficiencies that petitioner has are so mild that a layperson would necessarily notice some and even a mental status exam like you would usually do in these cases or any case may not pick it taking all that into account you might never have gotten there but then they went for even if you didn't even if you know even if you go through and you know everything that they had stayed b s if you have all the same have evidence all the same  experts and the court basically said it out it what each one had found that he has impairments in planning that he would have trouble planning this crime and then that martell said he would have trouble  planning that his symptoms were so not subtle that nobody would notice them and they weren't significant to the crime at all and the door supreme court basically said ok we're going to show we're going to put everything in your fiber and here's what we have impulsivity that he's more impaired when he's drunk and noting any george importance that this is somewhat this might be somewhat mitigating evidence but when you weigh it against the horrific abuse against joy the fact that he had done this before to would the other victim the way this crime happened and the demeanor after there is no prejudice and the long history when he tells others have to say what he tells others have exactly exactly and with a long history of abuse reports it is documented in the audio video tape that was present at trial joy telling what had happened so she was a saintly a witness at her own trial just for reference there was three days of similar transaction hearings that is sick it took up six hundred pages the trial in this case excluding five year took up twelve hundred six hundred pages eighteen witnesses it could have been called we're not ca additional additional incidents we're not putting in i think we left out out of our brief that when file so we are talking horrific abuse and we know that he can play and although his expert says he might have had trouble planning we know we can because he's done it before he did the same exact thing before except he went to joe morris house i mean he went to butch woods house with somebody and the children in the house recognized his accomplice so they had to l but this time he called joyce father is joy there know are much older and they're yes so now we know we're not going to get caught he goes and gets a shotgun or tell someone that that was a mistake then that was a joyce kills her by beating her face in killing i think we probably have a unanimous panel on this is a yes i mean he can play and then he goes back and he gets rid of the evidence and so the fact that his experts are saying that all i know you are a lot more of an expert in this field than i am but it strikes me is so odd i mean this whole thing about it's highly likely that the trial court would have ordered this kind  and it's unlikely the trial court would have exercise its discretion to do this or that how how do you analyze that and i mean is that are those findings of fact are those i mean how d to speculate about what i mean not all that maybe i'm just not informed by the course speculating about what the trial judge would have done well i said of evaluating the performance of counselor or the have to engage in after the fact in this in this area of litigation right correct and at think when the door supreme court is saying is just a whole host of unlikely i mean i think that's exactly what they said is because of all  is lack of showing of prejudice because you would not have found the same evidence but again if you're bothered by that you can go straight to if you've had it all it still is no showing  yes isn't that the easiest way to resolve those i believe it is but it's certainly not there i mean anything else would require considerably more work wit  would mean and obviously just like you can skip efficiency and go pros i think you can go to their alternative finding and the last thing i will bring up is that his experts say he's impulsive and he has problems issues with impulse and i think we've started our brief one versus belmonte where it says what you say afterwards certainly can be taken in consideration and undermine bunnings of impuls and in this case as we said all the statement threatening trying to hire somebody to do it the manner in which it was done and the utter disregard for suffering and the deaths there's absolutely no prejudice this is a cold and calculating murder that had been planned for years and he finally did it the thank you ron in recognizing that i think the court and even this burden underscore that deficient performance is not the strong point of the state's case the fact is the georgia supreme court expressly found there was deficient performance here the court said the heaviest court concluded the counsel's performed efficiently in failing to prepare for lance's trial by investigating lance's background we agree we hold the trial counsel performed well below basic professional standards by choosing not to discuss issues other than guilt or innocence with his family there was clearly deficient warman's so the question is was there prejudice so let's talk about actually more than one right because i think you could find there was prejudice but the question here is whether it was unreasonable for the georgia supreme court to conclude that there wasn't prejudice  slightly different question you know absolutely judge rosenbaum you're correct the stand the standard is i believe a done if i hope identified it correctly was it objectively an reasonable for the georgia supreme court to conclude that there was no prejudice given that there was nothing done at the sentencing side of the case and i think it's important to keep that in fact that can be often the case and in this context i mean that's not on that we get medication cases where nothing was done and then we get have considerable work done in cook state collateral review cretan we can and we defer to a reasonable determination that it would not have made a difference cut that's i mean there are a lot of cases in the circuit that have that right and there are there are and i've tried to read as many as i could and i won't say that i've read them all yet but i'm going to actually because there are a lot there are a lot but let's let's talk about a couple that we do know farrow versus hall which this court ruled that the georgia supreme court's determination of no prejudice was an objective lee and a reasonable determination because investigation that should have been done was not on and had the investigation been done it would have revealed evidence of mental impairment and a borderline i q it's someone out there other evidence and farrow vs whole yes there is are there other factors that are not here ye are there factors that we have that they didn't have yet there was no finding of dimentia by the state's expert in feral versus hall there is to my knowledge no case in which a court has said that a defend who suffers from dementia according to the expert testimony of both sides is not prejudiced when the jury doesn't hear that fact now this again put it in the context of objective leon reasonable what if there is no argument for why a jury shouldn't hear that fact and i haven't come up with an argument for how that fact is not significantly mitigating this court has ruled  is it i submit your honor is not would it have the option is that the jury should have heard right if the assumption is that there was deficient performance that means the jury would have heard it right right had the jury had the jury heard this then the question is is there a reasonable probability of a different outcome and the question is is it cond reasonable to conclude that there's not yes and within that context i believe that what the georgia supreme court does not do and doesn't address at all on the under the legal standard is the fact that in georgia only one juror can stand is the obstacle to the death penalty so the question is not is this going to change the mind of twelve jurors the question is is this is there reasonable probability as the supreme court said in repeal at the end of the day it is not the burden to show that there would have been a different result the ultimate burden is to shake the court's confidence in the result that obtained and in this case that confidence must i submit objectively by any reasonable standard be shaken when you have two you have two situations the one that existed where there was no evidence and the one that existed in the post convention hearing where there is agreement on dementia and let's be clear about this the evidence there was found by the state court and the george  not in any sake say this is clearly wrong it was readily available evidence that were red flags signifying it now that's that's the factual record here what the supreme court  and i think what makes their decision objective leon reasonable is they simply ignore the facts and mischaracterize the testimony to get to their conclusion that it wouldn't make a difference but if you say the words this defendant has dementia and everyone agrees with that that is a mitigating factor that you don't blame the defendant for and it we believe raises the level of objectively unreal a little determination in that fact you don't have to go throughout the country to find the one outlier of an expert who might support you and if you find them that's not going to tip the balance that's what elegy duggar basically says there there was consistent testimony by mental health experts against that said basically the he did not suffer from impairment and on post conviction the defense found one expert who would say that he did suffer from impairments and this what the court said is yet you don't have to assume that counsel is going to go find this one person hidden in massachusetts and bring them down to georgia to testify that's not our case everyone who looked at this gentleman every expert who looked at him concluded that there were significant impairment the state continues to suggest the impairments are not particularly significant please look at dr martell's testimony he acknowledges that dementia by its very definition involves significant impairment of multiple cognitive functions including the ability to carry on in function in life normally now he may say it's quote mild dementia but dementia to get to the threshold has to be significant impair what the state says is but he then said that he was fully capable of planning and executing this crime he doesn't really say that what he says is if i assume he committed the crime then the fact of the crime is the best evidence of his behavior but i asked him specifically dr martell did the state tell you there was no fingerprint found there was no d n a evidence no murder weapon was ever found no bloody clothes were found no he knew none of those facts he was told none of that in deciding whether to offer an opinion about whether he could have planned a crime disposed of all the materials and done all of that he had no information on that and didn't express any opinion on that whatsoever so i think at the end of the day we all come back to this question of was there prejudice and i understand and agree with the courts understand it's a tough burden ok i got that but i think it's also not an insurmountable burden that's what this court said in the federal case and in this case we have a situation where yes there's a lot of aggravating evidence there's no question about that a lot of that relates to impulsive actions of this individual that it can be tied to the very mental impairments and defects that he suffers from and the jury never heard any of that i don't think there's any question that was deficient performance i think it's  an objectively a reasonable determination or an objective leon reasonable application of the law and i've found between those to i've tried to understand the difference between what an unreasonable application of the law is and what an unreasonable determination of the facts within the context of law is and i think they come out pretty close to the same and under either one this is objected leon reasonable and the other question thank you have some of oh we will be in r and we appreciate you except in the appointment discharging your duty well and honorably and assisting the court today and of course we appreciate the public service from the attorney general's office as well thank you