good morning your honour's and may it please the court i'm julie band of her assistant federal public defender on behalf of timothy camp he had so much better than most he had a mother who loved him who did her best to take care of him and to protect him she was always there for him when she could be he had much more than a lot of people you see he's worse than most people because he had no excuse this is what the prosecutor told the jury in her closing statement at the sentencing phase of mr kemp's first trial did mr kemp have it better than most when he was in utero his mother got falling down drunk and his father tried to beat the baby out of her when he was just two days old and still at the hospital where he was born his father was arrested there for public intoxication at only six months old his mother filed an emergency petition for divorce because his father verlyn can't had beaten her threaten to kill her she dropped that petition because she feared if she went through with it he would actually kill her tim camp and his brother brad did mr kemp have it better than most his father beat him with dog chains and two by fours his father slit the throat of his pet dog because mr kim loved it more than his father did kemp have it better than most he was developmentally delayed he couldn't walk right he couldn't retain information he functioned as an adult like a seven year old child his mother drank seven days fifth or more a day she kept a bottle in her purse and another in the glove box she was drunk most of the time by the time he was thirteen he was driving her to the liquor store because she was too drunk to do it herself no mr kant did not have it better than most the story of his upbringing is tragic and it's relevant to his moral culpability but the jury that decided  punishment heard only a small glimpse of his life story and the reason why is that trial counsel failed to do a thorough investigation as the supreme court has repeatedly held is required in the capital in  capital case like counsel in wigan's trial counsel here had a rudimentary knowledge of his client's life from a narrow set of sources so what did counsel do first of all he did all of the investigation himself he had no help and he talked to four people he talked to mr kemp's mother he talked to his boss he talked to a paternal aunt and he talked to a childhood friend he tried to talk to mr kemp's brother by phone entire penalty phase in the first trial including argument instruction witnesses and deliberations was an afternoon the direct testimony of lily can't mr kent mother was takes up ten pages in the transcript and the district court said this was an adequate job because there were red flags prompting council to do more and that was error for two reasons the first is that the base investigation that council did that we would rely upon to raise those red flags was inadequate it wasn't thorough and the second is based on the little work that council did do there were red flag reasonable counsel would have followed up on the district court was careful to try to take away the distorting effect of hindsight and i would like to do that too and look at what the standards were in place at the time of mr kemp's trial and what counsel knew or should have known the supreme court has said that the a b a guidelines are evidence of what norms are in capital cases and the relevant guidelines were this one thousand nine hundred ninety four trial would be the one nine hundred eighty nine a b a guidelines for the performance and appointment of counsel in death penalty cases so what do those guidelines say they say that counsel is supposed to undertake a multifaceted investigation into his or her client's life and seek out collateral witnesses and corroboration and get records to verify the things that you're learning about your client they also say that supporting services are required for effective defense representation that the thorough like history investigation cannot be done without the assistance of investigators and that immediately upon in tray in the case counsel must attempt to obtain the investigative services necessary to prepare for both those phases in addition to the a b a guidelines of the hay vs hearing that was held in this case we presented a standard of care expert sean o'brien who testified regarding what was being done in capital cases at that time he said the standard of care was to use a skilled investigator to develop this kind of life history so those are some of the objective things what about the circumstances in this case and ask you are there any cases that say you have to use an investigator to to not be in effect  don't know if any case that says that you have to use an investigator and i don't think that the court needs to find that and the supreme court has repeatedly said that the determination of whether counsel's work is effective is a case by case analysis and so it may be that in some cases a lawyer could do this kind of investigation themselves but this was not one such case which is one of the things that i was about to talk about is this  one of your main contentions is the fetal alcohol syndrome right yes where would he have found that other than by interviewing the mother which he did that is a great question he did interview the mother which witnesse said that lily got falling down drunk while she was pregnant ruth boyd is another aunt that she remembered when lily kemp was pregnant with him because she was pregnant too with she had a son that was born like three weeks after mr was and so she had a very good memory peg of the time and she testified to the hey b s hearing that she remembered lily coming over to her house smelling like alcohol and slurring her words when she was quite pregnant with pregnant her grand there was fretting because lily was still drinking that old beer and she was worried it would hurt the baby and there is indications in the record that both the state hospital and doctor moneypenny kemp about her pregnancy and the note is that it was unremarkable and i would submit that to lily can't her pregnancy was unremarkable because she spent her whole adult life intoxicated and being beaten by her husband she is not the best witness to ask about her pregnancy she's a witness to ask but that can't be the end of the investigation back to the investigator was a request made i believe that as you said we don't know but at the time there were there was the one thousand nine hundred three public defender act which provided that reasonable expenses should be paid by the county and in in any in any case hundred ninety one in the arkansas supreme court there had previously been a one hundred dollar expense cap they had gotten rid of that is unconstitutional and so there were every reason for this coun be asking for investigative resources he asked to borrow an investigator from the plasti county public defender office that office had a sort of the conflict in the case which is why they were representing mr camp and they told him no i'm sorry we can't do that because we have a conflict so rather than taking that one step further the obvious thing to do would be to ask the court and he failed to do it and trout testified that the reason why is because he had to strap it on in go mentality and he just decided to do it all himself and this lawyer was a solo practitioner he had six other capital cases and he just could not he just could not the trial court gave him co counsel he received co counsel but that was all the the help that he asked for he didn't ask for an investigator can i take a step back one of the things i find difficult to understand in these cases is how exactly we analyze them under martina's so because the claim was proved procedurally defaulted correct so all to get before that yours is that your understanding everybody's assuming here that postal petition counsel's ineffective this wasn't a very close question for the district court what post conviction counsel did ok so  got so we get over that hurdle so now are we is is a totally de novo at this point then is that what we're looking at is the district court there's no deference because there's never been raised you know deference yand saw the trial the trial court in this case the u s district court trial court judge marshall he does a complete de novo hearing and we review his hearing his find you stay  yes that is i don't think they've conceded that i think the court determined that there was not a substantial question they did and that that is what the district court found by looking through to the merits of the claim so that the district court and  had any merit and so the district court found that our claim met one of the two strickland pronk but i think that judge milloy that you're right that really what  court is looking at is the the the strickland question and it's looking at it did novo otherwise i don't know what whether you would have it seems like you would have a hearing on your your martinez whether you meet your martino's threshold and maybe have to show some sort of you know quite a look at the cases there may be a difference between the martina's threshold of a substantial question being raised a substantial issue and an ultimate finding i guess is my point i agree with you i think that it is alleged that whether or not you pleaded a substantial claim under martinez is a lesser showing than the full the full claim necessary to show for relief and we have to peek through to look at the underlying claim for sure but really where we're at is at is the substantial questions substantial issue i think that's right but i think there was sufficient evidence presented for case if i understand the stay the record i don't want to say judge marshall jumped over the substantial question but he sort of merged the two together the merits the ultimate merits and the substantial issue and said because you lose on the ultimate merits there's also a statue issue or my high as that means my reading as well i mean you could have a case where you're here strictly on martina's before you and we and we would have to district court and that is judge marshall explained sort of how he was viewing the case and i think that what judge malloy what you're saying is consistent with how judge marshall beat the case as well you can i can go back to my question though you explained that you know there were certain flags and that sort of thing but other than going to the to the mother wells should have been interviewed by the competent counsel i think an obvious so disclosed the fetal alcohol syndrome so you know counsel was aware of abuse and we know that from the state hospital records we know that he knows that from talking to billy can't win either of abuse child abuse in the home and i think if he had followed the thread of the abuse he would have found maternal drinking presented some of the abuse that he not he did but to answer your question about who should should he have talked to had he tried to talk to brad can't mr  brother who didn't want to talk to him and setting aside issue whether or not he went about that the right way there were mr kemp has two half sisters that were also spent a lot of time in this home that shared the same still year relationship with  who he knew to be abusive he should have talked to them they both testified that behavior hearing and had he talked to either of them he would have learned that lily camp was a very severe alcoholic and even camp testified she remembered she couldn't really she was a child she couldn't really remember when tim kemp was or when lily was pregnant with him can't but she drank before her pregnancy and after her pregnancy and rosella can't testified that with the sisters have known that she was drinking during the pregnancy well that that's what i just said they remember her basically always drinking and so further investigation also he did no investigation into the mother other than talking to the mother had to talk to any of her siblings she had a living sister roxie schultz who said she was basically spent her life in a bar were him she would had she would have led to the maternal drinking  or moneypenny do any independent investigation or did he realize he saw on the records provided by the attorney you know he he he he talked to mr camp he talked a little like him on the phone after volunteer had already started in the the morning med please the court i'm david route from the arkansas attorney general's office here on behalf of respondent kelly or the state of arkansas the court should affirm judge marshall's denial of relief concluding that mr did not overcome his procedural default defaults under martinez with respect to his investigation or presentation of the evidence that able counsel and her office put on in twenty fifteen illustrates the states and mr kent's different perspectives on the case i think that the mr camp's view works only in hindsight from twenty fifteen the ability to what did the judge say it probably would have made a difference as far as an additional evidence is lead trial our however didn't stumble in the constitutional sense by not turning up all this new evidence but again and i think you're i don't disagree with your characterization of the conclusion that it wouldn't pass muster i think the state disagrees with for this reason the court concluded that of course you can't evaluate ninety four  hundred ninety seven decisions about how far to investigate what evidence to put on in light of the twelve years that counsel had federal council had in federal  nothing of the additional time that passed between ninety four ninety seven to two evaluate deficient under nineteen ninety five for standards  were left with the what the district court said it probably would have made a difference in camp sentence have that evidence been presented isn't it disquieting to say that it's a lot at this spate of disquieting ups in so many cases out of arkansas it seems like the last thirty two years we've been trying to justify what the arkansas state court system has done or not done it's not disquieting in the legal analysis your honor because although judge marshall concluded that a one reasonable juror might have changed his or her mind if we could take the twenty fifteen case assuming you get over distorting hindsight and you actually cram everything that happened in the last twenty years into what trial counsel face in the roughly you know short of a year period it seems odd to me that you can do a prejudice analysis if you haven't identified any deficiency and for him to stay for the district court to suggest that this would have made a difference at the same time not finding any deficiency that seems sort of odd to me i share your sentiment that it's unusual here on our ordinarily i mean what wasn't a deficiency have to be connected to the the prejudice has to be connected to some deficiency right that's right and the the but for analysis under strickland which is is was are deficient performance which mr rich judge marshall didn't fine but for assuming deficient performances there projects extraordinarily the way courts look at it's usually the way it's litigated we jump through to prejudice over deficiency sometimes those are more difficult factual questions trying to re evaluate counsel's performance trying to eliminate distorting effect nevertheless there are two independent inquiries under strickland and how they're used under martina's to determine if there's a substantial claim to overcome that a fault and they because they are independent they can be evaluated as judge marshall did and and i say that i'd not entirely surprising that after eight days of the hearing and looking at the twenty fifteen case that's when this hearing occurred which is why i refer to it as the twenty fifteen case over a period of several months and eight days that a judge sitting as the evaluator could conclude this is a lot of information i'm majoris i'm trying to imagine what a jury would do with this information now or in ninety four ninety seven taking myself back with all this information there it's not beyond the pale to conclude one reasonable juror might have reached a different conclusion i'm prejudiced but i've got to answer the deficiency prong as the court under strickland and under martnez to decide is there a substantial claim here did did mr rosenzweig trial counsel principle trial counsel missed something that was staring him in the face did he fail to pursue something that was obvious you much as the judge around below and is this court said in a similar contacts and worthington versus roper the suit this is not a case  comparing and two cases in which counsel trial counsel is missing something staring him in the face he's making judgments at the time and if we take ourselves back to mr rosenzweig position in one thousand nine hundred four he's faced with a client who's committed a quadruple homicide almost a fifth in the circumstances of the case and in circumstances that well illustrate what could be described as pre meditation and deliberation he left the scene where his breville as cole revellers and would be tormentors had allegedly threatened him in return to kill four  them with you can i go back a little bit do you agree with ms van driver that our review was done although i do and and had meant to say that in the initial presentation yes that the standard of review for determination of procedural default is analysis the judge bar marshall brought to bear on the substantial claim question as to prejudice is not necessary because the review here is the question certified by judge marshall which as to looking at prejudice and recognizing judge marshall thought prejudice may well have been there if you could take this case in twenty fifteen but simultaneously and rightly here valuated what council had done at the time facing the facts of his the crime that counsel was preparing to defend the client that he was defending a thirty two year old man with a strong history of alcoholism and then the circumstances a real clock in a real trial remember mr rosensweig from the start did his did a very good job of preventing the state from introducing evidence that might be additional aggravators that might undermine the defense view he he took from the beginning and went through two recent thing which was this was the aberrant act of a a bad alcoholic who was subject to violent tendencies based on both his his diagnosis as somebody with social disorder not specified alcoholism and other substance abuse and a very strong family history of abuse and the jury's mitigators both at sentencing the original sentencing and overriding theme that he was he didn't want to present any evidence on the mitigator he didn't he didn't want to create some additional aggravators about the obvious k through the medication cases is that a fair fair reading of the record yes it is that's a fair reading and that simile was his view about the potential for aggravators that might have been pursued by the state with respect to other violent conduct after the escape his his decision not to call  mr thames aunt one aunt in particular and pursue an investigation with her or to use her as a witness was because she at least had it was his understanding that she had aided in it's not escaped his his hiding out afterwards so to speak but the fact that he would decide not to call or doesn't mean he couldn't talk to or investigate i mean investigation you can't make a reasoned judgment about who to cause that witness into you do a thorough investigation isn't that when that be fair to say as well though that is fair to say with the carry out that there are practical limitations for counsel at trial and th a district court concluded the two best observers perhaps were lily camp and brad camp and mr rosensweig spent time learning from will he can the status remember that mr kemp lived with his mother at the time the long with his  liberation so he was struggling with what his brother had done it was difficult for him to confront this and he didn't want to talk to mr rosensweig about it but again it comes to perspective could there be more witnesses to interview yes there's timing and again  i think it's partly about perspective and this morning's presentation i think again illustrates that with hindsight twelve years in federal hay b s more than twenty years past a trial you certainly can uncover a lot more and judge wrong and i think this is judge marshall understood that if you can't dispute more was uncovered you can't spend eight days at a hearing and not see that the question is as a matter of competent performance under the sixth amendment  conclusion that this wouldn't have been adequate today i think is is not a question the court needs to tarry over as to deficiency it's not a live question what would happen today and i can't tell you that if this case an angry drunk one time and not pursue presentation of other things would have been absolutely deficient strategy it's a harder case and twenty fifteen i don't dispute that i don't mean to suggest otherwise it's not an easy case in ninety three and ninety seven but when you look back through the records here mr rosensweig three times in this case over the course of its litigation has an opportunity as had an opportunity as a lawyer to illustrate his talents in defending a capital quadruple defendant he did that through the trial record and the recent survey record he did that in the post conviction proceedings in state court explaining his choices i thought lily kemp the mother was the best fact reporter the best witness to use on family history i was satisfied with dr moneypenny news report which was consonant with the state hospitals report about the illness of mr tam as a diagnosis matter although dr woods in two thousand and three and later has a different diagnosis and no doubt if we waited another twelve years to pursue this case there might be yet additional diagnoses all  good of the advancement of the ability to insure the capital sentence get the medication cases the constitution requires for competent minimum performance but to get to evaluate that was the first time the second time was in state post conviction and then it was in this record below he spent a little more than a day on the stand so i thought there was no straight course conviction i thought that's the reason we were here there was a post conviction  there was roughly a day here and probably a little less than a day hearing there was a rule thirty seven petition and a hearing conducted by an attorney who is now deceased on behalf of mr kemp to answer one of the hon questions earlier this state has not disputed that for purposes of evaluating the martina's claim to be advanced here we don't dispute that state post convictions counsel performance post conviction case which is why i say that's the second time mr what rosenzweig explain what he did in light of the circumstances he faced in ninety four and ninety seven and then he did so at this hearing again the those circumstances i think fall helpfully at least in my mind when trying to evaluate comparison to other cases both both from this court other court and the u s supreme court's guidance in this area about deficiencies in the minimum investigation the minimum presentation three broad categories you have to consider and again i find this help at the crime the trial counsel faced having to both determine how to make a guilt phase presentation and a penalty phase presentation you have to consider the client is this is this client young thirty two year old man held down a job and then you consider the clock there's no clock in federal court that's that's not entirely true but the clock certainly was more generous to the ability to develop a cas e about what this case could look like if it were tried in two thousand and fifteen and with those three broad considerations which i think each of which judge marshall brought to bear to explain why while fetal alcohol effects might have been in the air there was not a basis to do more than mr residence why did with lily camp especially failing in any ability to not failing failing meeting with brad kemp being able to actually get anything from brad cam dr wood's conclusion while not to undermine that diagnosis in two thousand and three wasn't the diagnosis available to mr resins wagon as this court said you don't have to you don't have to  doctor shop when you're defending a case it's not unreasonable to conclude that the doctor that you've that that state funds are paid for you to retain your request has determined that this the diagnosis he provided  substance abuse are alcohol abuse is consistent with the defense you hope to raise and an aberrant drunken rage and it has all the markings of that and then lastly family history there have to be limits in real time in hundred four to how many interviews you could do can you do more could there be more the could is is really relatively easy just as i think why judge marshall and by easy i mean evident it's evident that more could you there's just a couple things that i'd like to address first is this question of the scape that you raised judge malloy the only way in which trial counsel testified that he felt constrained by the escape offering testimony like tim kemp would be a good prisoner or in offering the testimony of this particular witness glenn of the walker and there were several other people that shared that same relationship to mr kemp who he didn't talk to and one of the most i think really galling evidence is evidence of unreasonable behavior of trial counsel was when this three of these cases got sent back to be recent events and he did the exact same thing he talked to the exact same people including clint of the walker who he had said he decided made this decision not to call because that would potentially open the store why did he talk to her and not say ruth boyd and i think that really goes to show the kind of and reasonable decisions that this council was making and you know he said that he viewed the second time around as a rerun of the first time which as we all know including him that first time in did in four death sentences that is not an episode that you would want to see repeated if your defense counsel and as to the point of hindsight one thing that i'd like to direct  court's attention to is mr rosensweig criticism of the state hospital so he criticized the state hospital when he's asking for a defense psychologist because all they did was talk to mr kent smother and that they didn't expand their evaluation into more records on mr kemp he was deficient in the exact same way so this is not something that's only evident in hindsight this is something that he knew at the time also he knew at the time that an investigator would help he needed when he asked the public to fit or asked the local public defender to borrow one it was unreasonable not to take that next step and ask the court and in fact he was still operating under  this like judge woman you mentioned that had been found unconstitutional by the arkansas supreme court and so it was unreasonable for him to be stuck in that mentality and the united states supreme court in hinton v alabama said that it is unreasonable to fail to understand the resources that the law makes available to you and i think that applies here as well i always ask you for your argument thank you it cases submitted and we would take it under consideration