that we have read the briefs examined the record that will assist you and her in the focus of the arguments of the time that you have available d this afternoon mr thomas is the against him was completely circumstantial and despite defense counsel believing in his innocence and understanding that there were only two places he could have been at the time of the crime they did not interview anyone at the work release center where he was incarcerated had they done so they would have uncovered not only evidence but witnesses who would have testified who would have supported an problem that weaken the state's case even further than it already was as the supreme court said in strictly a verdict only weakly supported by the record is more likely to a been affected by  one with overwhelming records or the state's case against mr broughton that's was so d weak that defense counsel's errors in failing to properly investigate the facts of this  take into account the strength of the evidence against the against the defendant when determining whether counsel's actions are reasonable in this case there was there was no i with this testimony no one saw d mr broad acts commit any of the offenses that they claimed were committed at his place of employment d no one saw any of the events that the state claimed were committed by mr broad back in birmingham a hand also important no one saw mr blood on them changed out of those clothes hid them under someone else's mouth for us i'm guessing with no one see any of this so that that for all of the state's  attorneys done the investigations they should have which was question people after work release data they would have learned both things that would have supported an alibi for mister ford m in a large room which this is they did not have individual cells at the sparkly center they were all in a dorm type setting how he would have changed out of that shirt into another shirt and hidden that shirt under someone else's strickland versus washington based on the circumstance your honor i'd like you the best album a court focused on the fact that depends upon so we're not asked about this specific to establish whether the lawyers were ineffective now as to the other question about whether lawyers or were wired to so we focused their investigation based on what clive ho received or other evidence that would indicate that they should investigate further or investigate a specific phone further here in this situation find witnesses at the work release center they claim they couldn't they could not find anyone however the more length of time the evidence that was found your  existed at the time of the trial this is not evidence that that didn't exist until twelve years later this existed at the time of the trial these people were available at the time of the trial they were in and thirty it would have been impossible for him to of been burning abandoning that car we have two pieces of evidence that that indicates that mr  nine and ten pm that night it's a probably he said probably yes roger but we also have to remember your honored mr mr bowden was testify at a post accepted this d entire trial and never provided any of this information to his lawyers and now twelve years later it's d lawyers were all they were given an alibi the jury with given an alibi instruction but there was no evidence about alibi that cake that they if produce and the investigate the case they should have at least spoken to people at the work early setter and spoken to these very people had they done so they would have found this evidence and could have even before trial gone to mr broad in that sense said we have evidence you know is it possible you were mistaken about the timelines is it possible that you were mistaken about this has caused the two issues that could have played into mis remembering what happened or what has what had gone on in fact of mr broughton that one of mr your honors if i may in my last two minutes i believe if there are no further questions about claymont i would just like to very briefly touch on claims two and three with respect to the nd issue that we've raised the argument that we are making is that mr broad that in order to prove in effect of assistance of account of counsel in the penalty phase of the case should have been permitted to put on evidence that would have was thirty five years old when he committed the crime until jan d'angelo the st thing i want to do with regard to the st issue is correct a mistake in petitioners brief and in his argument this morning where he says that mr broad next has always maintained his innocence to be sure at a time of trial mr broad next told counsel that he had an alibi and that he didn't do it and now he has a different contradictory alibi and says that he didn't do it but in two thousand and three about eighteen years ago when he filed his st group thirty two petition and alabama post conviction review he made some allegations that are inconsistent with that and this of course was a cleaving that was verified by counsel as being true and mr right next described the breakdown of leaving him he only knew his mother's way of dealing with loneliness and fear that a moment without her explanation he lashed out against the person closest to him this lashing out would have irrevocable consequences in the two people were tragically killed so we have three different versions from mr drawbacks st as i say he didn't do it because he was a well worn nd he did do it but it was because of a quote psychological collapse and rd he didn't do it but because of an alibi that contradicts the st and moving on from that let's look at the current claim of benefactors mr braun axes climbing the coun factory for not investigate and how an alibi theory that he never told counsel about and one that is contradictory completely contradictory to the alibi theory that he told did investigate that theory course we know that he visited wellborn forest products we know that he used the services of an investigator we know he reviewed all of the evidence that's one of the things he testified to in two that he was at well warm until at least one thousand and thirty dollars that he was there and till a man named mark this was mr broad accidental find the person who called a van friend a man named mark called the band to pick him up we also the information that ron x s counsel or was given and the information that substantiated the story he was given for closed the possibility that broad nax returned to need to follow the evidence that they perceive and we talk about red flags a lot when we're evaluating attorney performance and a red flag generally speaking it's something that's visible and something that can turn he can say that invites further investigation and a court can reasonably and meaningfully evaluate how an attorney reacts to that mr plummer you mention of course we know from that counsel knew that his client had a record he knew that he had a conviction that was going to be at issue and the case he knew that that record was right there in the courthouse and he didn't ever go look at that red fla could be damed a red flag that counsel didn't follow up on but when the when the that when his client's alibi is given to him and it says substantiated by other evidence that counsel has access to and all of this together forecloses the possibility of there being anything to look into that it is would be difficult to hold counsel responsible on hold him essentially to a standard now your honor but they were not in two thousand and ten and in two thousand and ten alabama case law and the rules provided that an expert one couldn't be used as a conduit for hearsay which of course is a practice that federal courts have have criticized to do use of an expert merely as you caught it but i understand your your point in your question about the basis of the opinion in alabama in two thousand and ten starting from a what about federal of evidence eighty three i think alabama has the same thing that you know talks about exceptions to the hearsay and there's one about reputation concerning personal or family's history that it's been rejected because generally that exception is limited to family history in the sense of genealogy mr broad next his parents where these people and their parents were these people it is not intended to embrace narratives or relate the culture in the household correct john has not intended to embrace that but rather the more definitive this is who the who the parents were in my experience i'm thinking of cases sandra blackman which was a multi day evidentiary hearing i had in houston county where counsel aware of this ruling in alabama practitioner everybody knew about it put on hearsay and basically what the concern seems to be is that you know that we don't want to hear the jury to hear all this you know basically the hearsay jury rule her into hearing you're correct that there's also the state's interest in the state's right to defend it so it's convictions in a way that that up holes everything the supreme court has said about a petition or burden  showing enticement to relieve in part of that is subjecting that evidence to testing to to being able to cross examine witnesses and determine whether their stories hold up and whether they're sufficiently strong to to undermine our confidence and the original verdict and of course if somebody story changes on cross examination as i'm sure your honor knows they do then that's going back that may lessen  our concern about our confidence and in the result that's why the state believes it's very important to to disallow this this hearsay just as a general rule were present let me just showed that counsel knew about and this court this court found that council terminated their investigation an unreasonable point because while they knew that nurse psychological issues could be at play they neglected to get an expert and a follow up of course here we don't have that sort of red live indicator that further investigation is necessary and  i would note that you know we do have in this case reasonable jurors judge caught on the members of the album for criminal pills who all agree that trial council's decision not to counsel was not recall so counsel was never asked why didn't you look into his presence at the work really center not a clock so we don't know the answer to that but we can we can s case by the the institutional augie officers law which tracks the movement of the inmates in bands as they go from the work release facility to other places in this case that which is the one that has the mr broad nexus in tree where he wrote nine o'clock as the time that he got back that log was kept it was kept outside the office where the corrections officers stay law is one filled out by the duty officer who is essentially logging people and how silly so we can keep track of them and that logs showed mr broad x was not at i'm sorry at alexander see nine actually waiting for him when iraq around nine hundred and thirty but again we see the importance of cross examination because that story really didn't hold up and when we actually put the witness on the stand he testifies that well testimony about the location of something and you know the just going to interrupt and go and everybody knows where that is you know trying to do you know what i'm talking about i mean that would have been checked by johns oh ok ok so that was a little thirty decision maker in this case was a judge who was intimately familiar with the area where mr braun next grew up and and and knew where lation veil was it i don't think that i would i would may have impacted his opinion in some way but i know that that in ten had been for him to relate what people told him the stories that people told him and when the state learned that we filed a motion  might be a well that's what took it i would have to surrender you have an opinion about it i would have to know exactly what the expert i'd be have to be saying here in the courtroom at the court room an expert launched off on a narrative where he was know include interviews with family members among other things and then the expert can give that opinion right that speck that would likely come in your own yeah ok thank you anderson heard the rules say there was a change by that the rules committee that proposes new rules ultimately ends up being up to the album supreme court to to adopt their or reject them i'm afraid i'm not intimately familiar with how that rule came to be changed  experts and particular feel important opinions or inferences of the subject the facts or data need not be admissible in evidence in order for their opinion or inference to be so you're telling me so i thought th thirteen version was what was in effect during this time you're telling me it was an earlier version now you're i don't know it would have been at this point i'm looking at my two thousand and ten volume which in commentary rules seventy three notes that rule seventy and there are no questions then for the reasons i've given here today and for the reasons set forth in the state's brief or that i'm sorry the appellant brief as a way to ask that the judgment of the district court be affirmed thank you question these are the things that should have been happening at private these are the things that should have been happening that would have been happening at a trial and a jury  should have big considering all of this credibility and the credibility of all these various witnesses what was a stablished at the nd move thirty two dollars hearing where all these witnesses did come to testify w the defense counsel did not speak to any of each of these what the corrections officer come to be corrections officer whetstone were asked specifically did anyone from the interview you or come to question you and the answer was consistently so so when combined  what the attorneys testified to at the st rule thirty two dollars hearing there was no need for those attorneys to be questioned more specifically d about this this event we knew and it was in front of the courts that they had never been that these witnesses had not been spoken to and had they been spoken to again we would have raised questions about the state's very very narrow tunnel mr anderson brought up the fact of the officers law officers log indicates various things including when people came on shift which would have were challenging the state's case and continued to challenge the state's case throughout and in closing argument challenge the state's case and they did so without having all of this evidence that would have allowed them to further challenge the state case and they could have they would have been able to keep challenging it and there would be a reasonable probability that this result evidence was important and the arguments that mr interested make illustrate the importance of this evidence should have been presented to the jury and it should have been presented to the jury and should have been found d so the pence council could have properly defended this project at the time with respect to the issue with respect to again i would just stress prize in the penalty phase of that trial and they're for to be able to prove that effective assistance of counsel if he should have been allowed to run the evidence the way he intended for the evidence busy particularly because it was expert it was material that experts normally would rely on that would be admissible for those reasons with respect to claim in the in the brief that really does tie into a claim the one because the prosecutor in his opening part of presented a different picture and up further challenge to the state's not only the state's primary but the state's evidence that they did present specifically the clothes and the boots i would note with respect to the honor that weiss the prosecution reference those as the key piece of circumstantial evidence because they claim that no one else has those boots office corrections officer whetstone testified specifically th