because the court was clearly severing relevant mitigating evidence it was precluded from the court the trial court with precluded from considering relevant mitigating  weight to the mitigation evidence not that any such evidence was excluded from consideration in the back up and that was an eighth amendment claim as opposed to the due process claim that you are pressing now under eddings also the medication memorandum here in the record can you point me to where that claim was made to the arizona court the supreme court or the iraq war well either i mean the question is whether or not you are you have procedurally default two thousand and twelve and trial court on july twenty third without the benefit of a written special verdict went ahead and conducted it hundred ninety three i have had an opportunity to review this number and i agree that there was evidence of difficult family history by the defendant and this is the keyword however as i have indicated i do not find there is any way to demonstrate that at a later time couple i do with drugs alcohol or cognitive impairment somehow significantly impaired the defendant's compasses to understand the that somehow significantly impaired the defendant's capacity to understand the wrongfulness of his conduct and then if we read later on  without connecting it to the conduct of the crime and different paragraphs different headings different roman numerals the problem is that under this scheme that was set out by city arizona supreme court he w this arizona trial judge but we have to assume that the arizona trial judge followed arizona state law because he is a state court judge we cannot assume that he did not follow the law set forth by the arizona supreme court but as judge kozinski pointed out the first thing he said is i do not find that he's talking about family history is a substantial mitigating factor one but thanks to a childhood abuse not being a mitigating factor it seems to be independently dealt with in that sentence and then at the beginning of the next sentence when he refers to matter set out in a memor andum feet the the problem is when we read the second portion on one one six zero you have to read the fourth paragraph it says that that somehow significantly impaired the finding is that there wasn't a mitigating factor but another would suppose if the supreme court of arizona did find that there was evidence of independent evaluation of child abuse and p t d do you think that there is a reasonable basis for the arizona supreme court having found no reason as because it's not sufficient to well let's even assume you know the arizona supreme court stated that yet and the trial court had considered all the medicating evidence proffered by mechanics so but let's even just go beyond that and say if you're saying that there was a a relevance test if it's relevant then all the cases that have come out regarding these penry claims have been reversed on the basis of relevance that is the the test is a very low threshold test that's apply but in this particular case stronger need to i think that structural is a political for this particular case it states the ross the court says it's not  the issue of family history is not relevant it relies upon a case of well us and well us that says well we can't have people coming up here and talking about family history of mitigation because everybody would do that when the arizona supreme court does that it deprives my client other clients of the opportunity for a individualized consideration it deprives them of the opportunity to have a moral response so what happens next is the trial court follow the arizona law that's a structural error because it happened outside of the the trial setting then it goes on for appellate review the appellate court reviews it with the wrong standard they set the wrong standard for the client course they then go on  after the trial court addresses the nexus issue starting at line seven and he then goes on with respect to the other matter set out in the memorandum referring to the defense sentencing memorandum i have considered them length and after considering all of the mitigating circumstances the mitigating evidence that was presented by the defense in this case is against the aggravating circumstances and as i understand it that was a three day evidentiary hearing at which all this family testimony came in and he then outlines the aggravating factors and concludes that line twenty that the mitigating circumstances simply are not sufficiently substantial to call for a leniency under all  facts of this case isn't he weighing all of that mitigation evidence whether it's a statutory mitigator or a non statutory mitigating evidence against the aggravating factors that he let her kno was precluded the relevant information that was precluded from full consideration was the difficult background the judge was not able to give its full effect in this paragraph  jury has to weigh it it is simply to consider it and make a determination as to whether mitigation outweighs aggravation isn't that what the court says it is doing before it pronounces and not in this particular case because missing in the second portion the penry portion is missing they're not giving a full and meaningful effect because of a screening mechanism set up by the arizona supreme court how would such a firm simply say i've listened to all this evidence but i'm not convinced you have it satisfied me that it's strong enough to outweigh the aggravating evidence or so in this particular case it's sort of considered other matters so the in the trial in the medication memorandum the lawyer said please write a written special verdict because that's required he considered it because he read it but that didn't mean he gave effect to it that's another example of the difference between consideration and giving a fact what let's let's assume that he had taken this paragraph and put it in the form of a written order with that have been sufficient to meet your objection no because that was the ruling the arizona supreme court the law that says that difficult family history is not a very gating factor unless it is tied to the crime let me ask you this  me given that wallace was on the books at the time of the sentencing hearing and then when the time of the sand being imposed and then the supreme court of arizona deciding we get ross the law in announced by the ears on the supreme court was very clear that unless there was a connection between childhood or whatever it was and on the crime it was not to be considered given that w ce was already on the books at the time of sentencing did the defendant hold back on presenting any mitigating evidence with respect to god or anything else  limitation that was some post i don't think they held back factual information but i think they held back legal information and that's what comes into the play of the structural so now you nightsticks supreme court law that plays into the structural argument a structural error argument in addition to that the rule thirty two counsel you also see it there the rule thirty two counsel they didn't make that argument very clearly and i believe it's because the law with so clear in arizona about the requirement of a causal nexus just you know what ross and walsh are pretty clear my question went to quell who were there had any impact on the evidence of that the defendant presented at the sentencing things i don't i i think the factual evidence a structural or a harmless error standard has to recuse and part of trial that you know as a practical matter yes the factual he had a horrible factual had a horrible life but he committed some really horrible crimes too and so when you consider the make gain and the aggravating what you can't be a causal nexus but it but that is the backdrop that is the reality of  all of that when juries are looking at it there are in this case one quite so looking at it so in a way i mean still can't as you cannot escape the facts of the case which are terribly aggravating honor so to say that so to say that there's only one way that you can look in a lot of times the facts of the childhood are bad and way juries can look at them in a way that saying yeah there was like a sub that in there so far gone that the one you know there's only one homicide and but it's a child and it's a rape case and first don't carry stone like those very much despite having a bad childhood  yes but when there is a sentencing by the state where you're trying to take and life and execute him i have to you have a proper framework for it to operate under it's portions of the memorandum separately well gardner says that he didn't indeed consider it was i consider medication evidence without a nexus because of the arizona supreme court case the direct appeal that addresses that issue is that your honor the court yes the answer is yes there's nothing in my opening brief now yes there was and he has made reference to the eighth amendment and he is talking about the fact that a bad childhood alone should entitle him to release which has nothing to do with winning that's a that's just a straight eighth amendment cruel and unusual you can't execute him because of his abusive child i and in this particular case were saying there is no way because of the law is applied i think that's the argument that he made was an eighth amendment claim in other words i should be excused from doing this because of my abusive please the court my name is michael berg and i'm the appearing on behalf of the federal public defender for the district there is owner as amicus and we wish to thank the court for allowing us to participate in oral argument today with the court's permission i would like to first address the questions raised by judge fletcher and judge callahan judge fletcher you asked mr matthew there was any evidence that was withheld in this case and i am not a member of the mckinney team but i would say that the the most truthful answer to that is that we cannot know because arizona was operating under a system and which a call from that system existed and that system was so well known that if very likely permeated all the way down specific reason twenty two fifty four d provision that requires a clearly established federal law and if i understand correctly you ask mr matthew what is the clearly established federal law that says  determine that the arizona courts violated clearly established federal law with regard to eddings and lockett this court with then on its own have to determine whether that error is structural or harmless as it were you would concede would you not that there is a line of supreme court case law that says that the lack of a causal nexus is a factor that can be considered in determining what weight to give mitigating  it would not be improper in trying to determine what if any weight to give non statutory mitigation evidence the fact finder asked whether or not it could be tied in some way to the crime that would not be improper at all it's certainly something that would be recognized by the eighth amendment the distinction that we have here though is is that reversed and that is that the sensors the child judges in this case  would they were prohibited from exercising their unfettered discretion to decide whether in any individual case this evidence of a difficult job little background or mental illness in fact was they were prohibited they were your honor and less it was they had been told repeatedly that unless that evidence bore possible connection to the facts of the crime that evidence was depending on which case you want to because they were saying that they had the freedom not to consider it but i would say it more strongly when i was reading from ross this is the arizona supreme court a difficult family background is not that is correct your honor and i suppose if i understand your argument that it's a question had seen your question had they had a judge decided i in this particular case feel that in this instance it merit longer final there are cases and if there are that stands for that proposition and they include men as b quarterman from the united states supreme court and mad world first as paterson which state my name is jeff second i represent respondents up as we go up would you please me please clear my name is jeff sick and i represent he responded happily in this matter getting to judge thomas first question regarding the fair presentation  well we argued that this was not fairly presented this claim and it was procedurally defaulted the district court didn't agree with that and we accepted the district court's decision that the state court actually determine the merits of this claim and the claim was  correct in finding that there was a merits determination on this issue and in that regard at sentencing defense counsel did present this issue to the trial court he cited to lockett and adding essentially mirroring the panel the session we don't believe there was any error any constitutional error in the sentencing in this case at the time it's been argued that arizona had a causal nexus test that it was that was that i just read which is to say it's relevant unless you've got the cow causal nexus and then the arizona court supreme court writes the record clearly shows that the judge considered mechanics of most of childhood and its impact on his behavior and ability to for misconduct and it found it insufficiently many getting to call for leniency as i read there once i've got the jump site to ross which says it is irrelevant i read this real court of arizona saying there was no causal connection made and it's a around them and how do i how am i misreading that let me try to convince you that that is somewhat of a misreading of what's going on so when you look at the language it says as we noted in headlines claims a difficult family background including childhood abuse does not necessarily have substantial mitigating weight the arizona supreme court is putting weight into that mitigating factor it's not saying because it doesn't have it doesn't have a connection it's precluded it's not saying that we're not going to consider it it's actually putting weight on that mitigating factor but so let me read you back then to headland because there's room for says as we said in hedland so i'm now back in the earlier part of the opinion with respect to headline on page twelve twenty six running over the twelve twenty seven so i'm at the bottom of the second column and twelve twenty permit tell me when you're really you're with me i'm i'm there ok about six lines up i'm beginning to judge this through the sentencing judge and hadn't just specifically filed it hadn't was abused as a child but at the latest episodes of abuse occurred ten to eleven years before the crime and that there was no evidence of a causal relationship between the abuse and the murders a difficult family background and then the same language was later and with the same jump side to ross and then sentence and i went back to the headland because as you accurately said the court in discussing mckinney says as we noted in hedland right and obviously this is some of the way to construct this type of opinion i think in this case you didn't write it and i didn't write it so i mean who started there's a pattern right we are we got right we are stuck we're stuck with what we have but what i can you know what what i would i guess the the argument that that we want to make and we will make here is that you have to look at this language ok and i understand you're jumping back into headlines actual independent review but in mckinney's review it does indicate that it didn't right i mean it is a wrong statement that one sentence says yes but this may clarify ross in the fact that it's not following ross and saying it's not relevant it's saying that it's not giving it substantial mitigating weight and if you look at some of the cases and you can go back to the beginning when lockett came out just several weeks after lockett came out arizona changed its statute to comply with the locket decision and then after opinion it laid out a a roadmap for the trial courts to use in looking at non statutory mitigation because in that case the difference was it considered the statutory mitigation didn't find it relevant or didn't find it mitigating didn't say anything about looking at it as non statutory mitigation so laid out a road map and in that incited to lock it back a decision and told the trial courts you have to consider non statutory mitigation  know that well it's in it's in the sentencing transcript it's in a special verdict and you can go back before the special verdict as at the end of the evidentiary hearing the trial court informed defense counsel that he was thinking that i'm going to find abuse i'm going to find that he that he grew up in a secure situation and i also am convinced that there is some demonstration of the hostile factors of posttraumatic stress disorder that's in the transcript july twent caused him to commit this murder i think in this case in the kenny it's a little different than the other independent review cases that you've probably seen because like judge fletcher found the headland if you look at the opinion the head e independent review is broken out differently and some of that is because they found an aggravating factor was insufficient but in this case they looked at whether the trial court actually considered so they're looking at the trial court record and to  understand whether that's a reasonable decision you can look to the trial court record to determine that so for example you can find under d two twenty two fifty forty two if there's an unreasonable determination of facts which i think that word law found in her dissent any evidence on how come up at the supreme court consider evanescence a part of the record but if it's not part of the record i think they do search the record for no education and aggravation so there is a different place but the whole point is if you if counsel and it didn't happen in this case but i counsel had felt because of wallace but that he was precluded from putting in mitigation evidence of the family background at the time that simply would not be part of the weighing in any circumstance to the trial court or at that here's our supreme court correct if you can take snippets of the language from that decision say yes it's constitutionally wrong and if you say it's not relevant but then if you actually analyze it you're actually giving it consideration so trial courts nearly nothing precluding trial courts at this time from considering it again and in this case even if you just look at the arizona supreme court decision you can determine that it was weighing his mitigation he was weighing the child abuse in the post sort of not finding it substantially mitigating so that indicates that the the arizona supreme court in its independent review in looking at what the  through to what actually occurred and it only makes sense in this case when you have an indian and it would be at an appellate court looking at what the trial court actually did didn't talk to hear it did it said it found that the harmless error and tests implicitly held that the air was structural so when you're talking about that what's your response to that argument to well they've also implicitly held that this type of error is subject to harmless  in hitchcock versus duggan's and skipper versus south carolina so they've never clearly held that this type of error is structural air with respect to whether it's structural air i think in  this instance when you're down here you're kind of going through your if if we don't agree with you on the first prong the second prong and pack you're saying it's not clearly established that's correct they've never held that this type of error structural air rrect to overcome the black suit correct i mean it basically we're back in the same situation we were in glebe earth for us right correct we wanted to declare structural error the washing supreme court said no this this man's right it is a difference there that issue that particular specific issue wasn't before the state courts but even if you even if you have that position and you look at whether this is structural  it did send the cases back but the issue of whether it was harmless and structural wasn't even before the court to talk about the issue but what it actually do is actually at the position that they have never held that it's structural error and even if you determine that you're not valid by clearly established law under the a t p a you still have to look at the type of cases that are structural their cases and the supreme court has jealously guarded the rare type of case that is structural so the type of structural error you see is case is here that infects the entire process the entire criminal process or the whole criminal process they've always said that this is one aspect of a criminal trial this is not it doesn't affect the whole trial and it's amenable to harmless error review because you can take  preclusion of evidence and look to see whether it would have a substantial injuries effect on the verdict itself so there you have the circumstance for everyone concedes are a very sick childhood and so why wouldn't the young constitutional admission of evidence in a capital sense so you're free to do that but you can all you can look at that evidence and determine that like the trial court did hear it looked at the mitigation that mckinney presented and analyze it against same the same type of review it looked at that type of evidence and found it really wasn't significantly mitigating and when compared to the facts of the case but that's what i'm getting to my original question it might be in the case where you say look there was it was kind for the same reasons the trial court found i mean you had a trial court did find that that mckinney had a very severe childhood upbringing and that he was because i have have you answer that question assuming that the deliberate pre planning throughout and how that mitigation would have affected his conduct behavior character record at the time of the murders and the trial court went through all of the deliberateness and the harmful then you would send the case back if you found that it was harmful have the question as i think the question is is exactly that who's going to side whether it's harmless or not and it seems to be arguing that we would do that here we by think think this court can do the harmless error analysis that if let's assume that we can include that there was harmful then the next step would be the cases reversed but then three weighing would be done or the rico sentencing would be done in arizona state of the recent thing would be done and in state court now so here's my here's my problem is that we have the trial court saying this is making a finding that there is a significant problem with a child that's significant evidence if we conclude that he didn't that he did not consider that because of eddings there there was a he said look this is very important but i can't consider this medication because it didn't have a  wasn't that harmful or well if i'm asking you to assume that hypothetically because i can see from here your brow you say well that's not true i try to no no i know that that's not what i was just trying to follow the logical extension so but if we conclude that the trial court did not consider that as mitigation evidence because of eddings or why or why doesn't that by itself indicate that it was not harmless or that was harmful or that we need to reverse well that's what you would find if you if you found any very you would have you wouldn't have to find it harmful well in some cases we might not if we thought that the mitigating evidence that hadn't been considered was really not very weighty credit in this case where the finding from the trial court that this particular childhood abuse was really  that's correct so in this case it seems to me that we find anything scary has to go back not in every case but perhaps in this case because we have that decision from the trial court and so if i'm wrong about that i'd like you to correct me what i think you'd still have to go through the harmless  analysis and find that that mitigation was precluded for one that's on the merits then the evidence there then then you'd have to find that that it was harmful and you'd have to do that analysis and look at seems to me that if the street rule that's followed by the trial results and what eddings tells us is relevant evidence not being introduced that's sounds like structural error to me how do we know one way or the other in this particular case whether the full extent of the child abuse was introduced as evidence well that's a really big yes and it's speculative yeah evidence not coming out source not in the record assume that the structure or you don't have to concede how do we know in this case whether or not there was significant evidence or child defendant said he wasn't aware of any evidence that was put on it speculative you don't yet we don't know what evidence wasn't and we don't know whether they put in all the there's nothing in this record and getting away from the hypothetical there's nothing in this record indicating that there's a supreme court ever had a rule that said you can't proffer evidence you can't bring evidence regarding your is language in those cases but when you look at the overall picture of arizona law at the time and its citing of adding and changing of the statute for lockett and two years before this appeal indicating that you have to consider all of the mitigation there's nothing indicating that the arizona supreme court had such a state rule and if if arizona had such a state rule we wouldn't have prevailed on a majority of these calls a there might be a little bit more but there's a lot of evidence already but there was a lot of evidence that this trial court heard and years in a supreme court review and found it wasn't significantly sufficient  way i do and i also you can also read it you reference his previous statement in the transcript on july twenty eighth where he did inform counsel that he did find that the causative factors with  so you know but with respect to that that particular quote just when you can look at you can reference back to his finding in p t s d but he also indicated that he didn't find it to be a substantial mitigating factor well or that it didn't have a connection so there's two findings and one of them deals with the weight that he's placing on that medication disagree with that reading i think what he did was he took the p t s d he simply assumed it was true and then gave it a fact by looking at how this mitigation had any type of value with respect to this case to say that he only looked at exhibit three which by the way and in the prior transcript on july twentieth he actually found that those causative factors listed in dr lewis's report which was exhibit three they were demonstrated but he just didn't find them to be substantially mitigating so i don't think you can penalize a trial court for actually looking at it and giving effect to mediation that was presented by  unself but that i see my time is almost up but i think you can look at the language here today to determine that the trial court actually did consider and weigh this evidence and there was no constitutional violation and for the use me very briefly on the the question of a structural error i would drag to court for some guidance to the supreme court's decisions host cracked there have been four hideous decisions by the united states supreme court i don't remember in the last twenty years sullivan v louisiana i think would be twenty some years ago would be thinking to last i don't think they have announced any others and they've been very